A & Anor v B & Ors: The approach of the family court to sexual history and allegations of rape and sexual abuse
In this important recent authority, Mrs Justice Knowles considered two appeals in relation to allegations of rape and sexual abuse, made within private law proceedings. Mrs Justice Knowles was asked to consider in particular whether the family court should apply a consistent definition of rape, sexual assault or consent, the applicability of criminal law definitions, the approach to arguments pertaining to a complainant’s sexual history and whether judges in the family court should give themselves warnings about ‘rape myths’. Knowles J allowed one of the appeals but not the other. This article considers the decision and the approach to sexual allegations within family proceedings.
Background of the Appeals
The Appeal in ABC
The first appeal considered was the case of ABC. The mother (A) had made several allegations against the respondent father (B), heard at a fact-finding hearing by Recorder Temple within private law children proceedings. The child was also a party (C). In brief, the parents started a relationship in 2013 and that year had an Islamic marriage. In 2014 they separated and C was born in October the same year. A alleged that B was coercive and controlling throughout their relationship and had sexual intercourse with her, without her consent, twice. In relation to the first occasion, A said she specifically consented to protected intercourse with B, but at some point B removed his condom without her consent. Following this, A became pregnant and she terminated that pregnancy. Thereafter, the mother alleged that the father coerced her into having sex, manipulated her emotionally (including her agreeing to conceive) and caused her related physical trauma. The second allegation of rape was said to have taken place in the presence of A’s daughter (aged 2 at the time).
A non-molestation order was made after the parties separated, which the father breached on several occasions, reported to the police. In September 2014 the mother first reported rape by the father and an initial account was later taken. Having thereafter decided not to proceed with the complaint, in April 2015 the mother said she wished to pursue her complaint and gave a video recorded interview. B was arrested and maintained that the encounter was consensual. In 2016 a decision was made by the Crown Prosecution Service not to charge the father. Thereafter, the parents did not contact each other, however, after the mother’s request to the father to assist in caring for the child in January 2017, they resumed a sexual relationship until April 2017. A said that she was manipulated into resuming the relationship. In January 2020, the father made an application which started the proceedings.
At the conclusion of the hearing, the judge at first instance did not make any of the findings sought by the applicant mother. A’s allegations included rape, sexual assault, sexual coercion, physical and emotional abuse, and coercive and controlling behaviour.
The Appeal in DE
This was an appeal against the judgment of HHJ Marin made in July 2022 at the conclusion of a fact-finding hearing. The parents had been in a relationship since 2004, married in 2009 and separated in 2018. Both parties offered competing reasons for why the relationship broke down, with the mother saying it was due to the serious emotional and physical abuse from the father. At first the father did have contact with the child, but said this deteriorated (and came to a halt in 2021) when he entered a new relationship with a woman he subsequently married. The father applied for a shared care arrangement, which the mother opposed and made allegations of rape, non-fatal strangulation, domestic abuse, controlling behaviour and child abuse against the father.
Whilst some adverse findings were made in relation to the Father’s behaviour, no findings were made of rape, strangulation or physical and psychological abuse of the parties’ child.
The Law/Propositions
Each appellant was granted permission to appeal on grounds with common themes. Rather helpfully and in order to provide some focus, Knowles J set out five propositions on which counsel were to provide submissions. These are set out with below, each with the Judge’s consideration of the proposition and the law. However, first Knowles J reiterated the role of the appellate court and the circumstances in which appeals are to be considered.
The Role of the Appellate Court
Knowles J found the Appellant mother’s request for the court to give guidance on how allegations of sexual assault, rape and consent should be considered in the family court to be problematic. As per the Family Procedure Rule 2010 (‘FPR’) the role of the appellate court is to determine whether the decision at first instance was “wrong” or “unjust because of a serious procedural or other irregularity in the lower court”[1]. Knowles J also drew attention to the observations in Re H-N[2]; “But it is also because there is plainly and properly a limit to what a constitution of the Court of Appeal, determining four individual appeals, can, and as a matter of law should, say about issues which do not strictly arise in any of those appeals.”[3] Further legal principles were set out by Knowles J from leading authorities and concluded at [12] that “my role as an appellate judge does not preclude me, where I consider it necessary to do so, from providing some guidance or observations which aim to clarify the law as it currently stands…I am quite clear, however, that it is not my role to construct a substantive framework for determining allegations of rape and sexual assault in the family court.”
Legal Context
The propositions which Knowles J set out are against the backdrop that the family court should not undertake an analysis of factual evidence based upon criminal law. This was clearly set out by McFarlane LJ (as he was) in Re R[4]:
“(1) The focus and purpose of a fact-finding hearing in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court.
(2) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes opened to such risks as factual determination may have established.
(3) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court.
(4) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings based upon criminal law principles and concepts.”
This guidance was also reconfirmed in Re H-N, though in JH v MF[5] Russell J adopted the principles but suggested that the family court should not take an approach which is at odds from that applicable in criminal law[6]. In considering these cases for appeal, Knowles J adopted the principles set out in Re R and confirmed in Re H-N.
The Propositions and Law
Knowles J considered propositions 1 and 3 together.
Proposition 1: Whether the family court should apply a consistent definition of: (a) rape; (b) sexual assault; (c) consent, making clear the difference between consent and submission.
Proposition 3: Whether the definitions of rape, sexual assault, and consent used in the criminal justice system should be either a starting or finishing point for judges in the family court.
On behalf of the mother in ABC, it was submitted there was a need for consistent definitions based upon a variety of fact-finding judgments (which were argued to show contradictory approaches to rape) and the absence of such a framework in the FPR. A legal framework was suggested on behalf of the mother which is set out at [19]. In opposition, it was submitted that there was no evidence of inconsistency amongst reported decisions and importing principles from criminal law was contrary to the purpose of a fact-finding hearing process in family proceedings. Further, on behalf of the child in ABC, it was submitted that the court had the freedom to determine what was abusive within PD12J definitions, focussing on what was necessary for welfare determination.
Knowles J’s view was that as a starting point, the family courts must not import the definitions of criminal law. Though Parliament had recently passed the Domestic Abuse Act 2021 which in some parts mirrored procedures in criminal law to family law, such as litigants in person not undertaking direct cross examination, there was no framework provided to determine definitions of rape and sexual assault. It was Knowles J’s firm view that a focus on seeking to characterise or establish behaviour as meeting a particular definition runs the risk of the court becoming “unnecessarily bogged down in legal technicality”[7]. Moreover, as McFarlane LJ considered in Re R, the judge must consider a wide canvas and scrutinise family relationships in order to make a factual determination, relevant to risk and welfare. The appellant’s suggested framework for determining allegations of this type included the word ‘willing’, which the Judge considered too narrow and as prescriptive as applying criminal law concepts. Knowles J was of the view that this was “too narrow a prism through which to view and investigate the true nature of an adult relationship.” Knowles J also considered the danger of adopting too narrow a focus on sexual relationships between adults, as set out in K v K[8]. In this recent appeal, the judge was criticised for not standing back at looking at the evidence as a whole.
Knowles J also rejected the argument that PD12J fails to contain a framework to determine sexual abuse. At [29] she states that “PD12J sets out a specific procedural framework for managing and determining allegations of domestic abuse within private law children proceedings…the inclusion of any type of framework advocated for by Mr Metzer KC would inappropriately narrow the court’s focus and run the risk of becoming a tick box exercise rather than a holistic evaluation of the evidence in a particular case.”
Accordingly, the argument that the family court should apply consistent definitions of rape, sexual assault and consent was rejected. Knowles J also held that the definitions of rape, sexual assault, and consent used in the criminal justice system should have no place in the family court.
Proposition 2: Whether the failure to have a consistent approach to these issues is in breach of the Article 6, 8 and 14 rights of the Appellant mothers
It was submitted on behalf of the appellant that the lack of any consistent approach impacted on the fairness of the proceedings and subsequently breached Articles 6 and 8. Further, Article 14 was impacted due to the discrimination following breaches of Article 6 and/or 8 on gendered grounds, as women were more likely to be victims of rape. In contrast, leading counsel for the father opposed that there was a breach of any article rights and also criticised the mother’s team for not providing any domestic or international authority that the necessary articles required definitions of the terms in proceedings concerning a child’s welfare. Knowles J was not satisfied that there was any breach of Article 6 (based on inconsistent decision making). At most there were different decisions made by different judges on different facts and evidence, a feature of the fact finding process itself. The Appellants referred the judge to the Istanbul Convention[9]. However, the judge considered that the ‘Istanbul Convention imposes no obligation on the family court beyond that articulated in Article 31, namely that violence covered by the Convention is taken into account when determining issues concerning children.’[10]. It could not sensibly be argued that the family court fails to do so. Thus, Knowles J determined that Proposition 2 had not been made out by the Appellants.
Proposition 4: What the approach of the family court should be to a complainant’s sexual history when determining allegations of rape and sexual assault
When considering this proposition, all the parties agreed that as PD12J does not provide guidance on this issue, it would assist for the court to provide some. All parties appeared in agreement that a complainant’s sexual history with a non-party would rarely be relevant.
Knowles J stated [46]:
(a) An assessment of the relevance of the evidence for which permission is sought to be adduced, having regard to the need for the court to consider the "wide canvas" of evidence;
(b) Thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved;
(c) At all times, consideration of the breadth of the court's powers to control the manner in which evidence is to be placed before it.”
When the court considers evidence, it has a discretion to control the evidence as per FPR rule 22.1(1) and it must also consider the overriding objective to deal with cases justly, having regard to any welfare issues (FPR r1.1).
Knowles J gave the following legal framework to assist family judges in case management of evidence relating to ‘sexual history’ at [58]:
- If a party wishes to adduce evidence about a complainant's sexual history with a third party, a written application should be made in advance for permission to do so, supported by a witness statement.
- It is for the party making such an application to persuade the court of the relevance and necessity of such material to the specific factual issues which the court is required to determine.
- Any such application will require the court's adjudication preferably at a case management hearing.
- The court should apply the approach set out at [45]-[49].
- If a party wishes to rely on evidence about sexual history between partners, they do not need to make a specific application to do so unless reliance is also placed on intimate images. In those circumstances, the party must issue an application in accordance with the guidance at [77]-[78] in Re M (Intimate Images)[11].
- If a party objects to evidence of sexual history between parents/parties being filed, they should make an application to the court in advance, supported by a witness statement explaining why this material is either irrelevant or should not be admitted.
- Any such application will require the court's adjudication preferably at a case management hearing.
- The court should apply the approach set out at [45]-[49] of the judgment.
Proposition 5: Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.
On behalf of the appellants, it was argued that family judges did need to have a full understanding about the myths: in the Crown Courts, judges were advised to give directions about stereotypes common in sexual assault. The appellants drew the Judge’s attention to the Crown Prosecution Service Guidance[12] which set out various myths, and it was submitted that this would be a helpful starting point for judges. In opposition, it was argued that family judges are required to have Judicial College training, thus if there were to be further training to assist judges it should be brought to the head of the Judicial College. In the Judge’s view, judicial training is a matter that is reserved to the Judicial College and it is in the best position to assess what training is required for judges. The Judge did, however, set out resources that provide her with assistance at [63] including literature about rape myths. Knowles J did not consider it appropriate that she should produce a list of common rape myths or stereotypes as it would not be comprehensive and would run the risk of creating a rigid framework.
Decision
The Appeal in ABC
On behalf of the appellant, it was argued that the judge at first instance infected her analysis and findings by using the criminal definition of rape within the Sexual Offences Act 2003, which all parties agree was contrary to the guidance from Re H-N. Counsel for the father submitted that though the definition applied was incorrect, the judge did not become bogged down in legal technicality, nor was the judge distracted from the task of reaching narrative conclusions of the parents’ behaviour. Knowles J concluded that the judge’s reference to the Sexual Offences Act was ‘very troubling’[13] and held that it should not have formed part of the judgment. However, Knowles J was not satisfied that the judge at first instance made decisions that were not in accordance with the principles of fact-finding in the family court which was set out in her judgment.
In consideration of ground 2, it was submitted on behalf of the appellant that the judge failed to apply leading case law concerning rape, domestic abuse, coercive and controlling behaviour and PD12J. Further, the judgment was fatally flawed as there was no overall analysis of the parent’s relationship to determine features of coercive or controlling behaviour. Knowles J reiterated that she was concerned with substance over form and noted (which no party disagreed) that ‘the evidence in this case amply demonstrated the judge's awareness and application of Practice Direction 12J in her case management of these proceedings’.[14] Knowles J analysed the provisions set out in PD12J and in conclusion could not accept the appellant’s submission that the judge’s failure to cite PD12J in the context of a fact-finding exercise was so fatal to impact her judgment.
The third ground that was considered in this appeal was that the judge was wrong to place weight on past sexual conduct of the mother. It was submitted that the judge had gone too far when considering the sexually consensual behaviour and, in essence, the judge had victim-blamed the mother. However, on behalf of the father it was submitted that that the judge had correctly evaluated the parents’ sexual behaviour against the whole background. Knowles J considered that where there are allegations of sexual coercion, there would need to be judicial evaluation of the sexual relationship and in this case the judge at first instance had placed the appropriate weight on the evidence provided to reach her conclusion. The judge was not satisfied that this ground was made out, in fact she was unpersuaded by any of the grounds of appeal and dismissed the appeal.
The Appeal in DE
Though there were multiple grounds upon which permission to appeal was allowed, Knowles J primarily focused on the grounds in relation to how the judge at first instance approached the allegations of rape and non-fatal strangulation. During submissions, both counsel agreed that the judge failed to specifically identify whether the findings he made were within the definition of abusive behaviour in PD12J. Knowles J was not persuaded to consider the finding that the mother was not raped by the father, as the judge at first instance had the benefit of hearing both accounts first hand. The judge was, however, persuaded by the argument that the trial judge failed to stand back and consider the significance of the findings he had made about the parties’ sexual relationship and set these against findings made about the father’s behaviour. In allowing the appeal on this ground, Knowles J considered two main reasons. The first was that ‘that the judge failed to consider whether his findings amounted to behaviour which, though falling short of establishing rape or non-fatal strangulation, was nevertheless profoundly abusive and which should not be ignored (see Re H-N at [71])’[15] and the second was that in the judgment, the judge did find other examples of abusive conduct that would be within the meaning of PD12J. Overall, it was held that the judge erred by failing to stand back and look at the big picture. Knowles J stated “I venture to suggest that, had the judge adopted the discipline of evaluating his factual conclusions against the definitions in PD12J, so as to produce a schedule of his findings, he may not have fallen into error.” Failing to look at any pattern of abusive behaviour would have profound implications for both the welfare analysis conducted by Cafcass and the court’s ultimate welfare determination. Accordingly, Knowles J held that this case should be remitted to the relevant Designated Family Judge to determine whether a further fact-finding hearing is required and, if so, its parameters.
Conclusion
This detailed and helpful judgment provides reminders to practitioners of the key authorities when considering allegations of rape and sexual abuse, within the scope of PD12J. The judgment in the form of propositions gives the reader insight into the judge’s decision, having considered the detailed law. The provision of guidance regarding a complaint’s sexual history is thoughtful and will provide practitioners and judges with assistance in the future, as PD12J cases remain ever prominent.
At [126], Knowles J made observations in relation to comments made by the judge in the DE appeal about the way victims of rape should behave. Knowles J offered a crucial reminder of universal vulnerability: ‘The intelligence or otherwise of a victim of sexual assault or of any assault in the context of an intimate relationship is nearly always irrelevant to the reporting of an assault to the authorities. Victims of whatever age, race, sexuality, appearance, intelligence, and background often have the greatest difficulty in reporting when an assault has occurred because of shame, fear of being disbelieved or fear that the process of reporting an assault will itself be traumatic.’[16]
A final observation from Knowles J was made, of key importance to management of cases concerning allegations of physical, sexual, emotional and domestic abuse. Neither judge at first instance had themselves produced schedules of findings (in ABC one was produced by counsel later). As set out in paragraph 29 of PD12J, a schedule of findings is required to be attached to the order following the fact-finding hearing. Knowles J commented that it would be desirable for a judge to complete their own schedule of findings, with the definitions set out in the practice direction in mind. Rather than intending to add to the pressures of busy family law judges, such a schedule represents good practice “which may help to illuminate a judge's evaluation of the evidence and to inform their ultimate findings.”
[1] FPR rule 30.12(3)
[2] Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448
[3] Re H-N at [2]
[4] Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198, [82]
[5] JH v MF (Child Arrangements) [2020] 2 FLR 344
[6] JH v MF [46]
[7] Cobb J in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) at [29]
[8] K v K [2022] EWCA Civ 468
[9] Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (came into force on 1 November 2022)
[10] [42]
[11] Re M (A Child)(Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam)
[12] Equal Treatment Bench Book (July 2022), to the Crown Court Compendium and to the Crown Prosecution Service Guidance found at "Rape and Sexual Offences - Annex A: Tackling Rape Myths and Stereotypes"
[13] [83]
[14] [89]
[15] [124]
[16] [127]
