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A & Anor v B & Ors: The approach of the family court to sexual history and allegations of rape and sexual abuse

<!-- wp:paragraph --> <p><strong><em>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. &nbsp;This article considers the decision and the approach to sexual allegations within family proceedings.</em></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background of the Appeals</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Appeal in ABC</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first appeal considered was the case of ABC.&nbsp; 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).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Appeal in DE</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Law/Propositions</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Each appellant was granted permission to appeal on grounds with common themes.&nbsp; 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>The Role of the Appellate Court</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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 <em>“wrong” </em>or <em>“unjust because of a serious procedural or other irregularity in the lower court”<a href="#_ftn1" id="_ftnref1"><strong>[1]</strong></a></em>. Knowles J also drew attention to the observations in <em>Re H-N<a href="#_ftn2" id="_ftnref2"><strong>[2]</strong></a>; “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.”<a href="#_ftn3" id="_ftnref3"><strong>[3]</strong></a></em> Further legal principles were set out by Knowles J from leading authorities and concluded at [12] that <em>“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.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>Legal Context</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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 <em>criminal</em> law. This was clearly set out by McFarlane LJ (as he was) in <em>Re R<a href="#_ftn4" id="_ftnref4"><strong>[4]</strong></a></em>:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“(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.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(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.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(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.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(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.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This guidance was also reconfirmed in<em> Re H-N</em>, though in <em>JH v MF<a href="#_ftn5" id="_ftnref5"><strong>[5]</strong></a></em> 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<a href="#_ftn6" id="_ftnref6">[6]</a>.&nbsp; In considering these cases for appeal, Knowles J adopted the principles set out in <em>Re R </em>and confirmed in <em>Re H-N.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em><u>The Propositions and Law</u></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J considered propositions 1 and 3 together.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>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.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>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.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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<em> “unnecessarily bogged down in legal technicality”<a href="#_ftn7" id="_ftnref7"><strong>[7]</strong></a>. </em>Moreover, as McFarlane LJ considered in <em>Re R</em>, 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 ‘<em>willing’</em>, which the Judge considered too narrow and as prescriptive as applying criminal law concepts. Knowles J was of the view that this was “<em>too narrow a prism through which to view and investigate the true nature of an adult relationship</em>.”&nbsp; Knowles J also considered the danger of adopting too narrow a focus on sexual relationships between adults, as set out in <em>K v K<a href="#_ftn8" id="_ftnref8"><strong>[8]</strong></a>. </em>In this recent appeal, the judge was criticised for not standing back at looking at the evidence as a whole.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J also rejected the argument that PD12J fails to contain a framework to determine sexual abuse. At [29] she states that <em>“PD12J sets out a specific <strong>procedural </strong>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.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Accordingly, the argument that the family court should apply consistent definitions of rape, sexual assault and consent was <strong>rejected</strong>.&nbsp; Knowles J also held that <a>the definitions of rape, sexual assault, and consent used in the criminal justice system should have no place in the family court.</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>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</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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).&nbsp; At most there were different decisions made by different judges on different facts and evidence, a feature of the fact finding process itself.&nbsp; The Appellants referred the judge to the Istanbul Convention<a href="#_ftn9" id="_ftnref9">[9]</a>. However, the judge considered that the <em>‘Istanbul Convention imposes no obligation <a>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.</a></em>’<a href="#_ftn10" id="_ftnref10">[10]</a>. It could not sensibly be argued that the family court fails to do so.&nbsp; Thus, Knowles J determined that Proposition 2 had not been made out by the Appellants.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>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</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J stated [46]:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a><em>“My starting point is that the established approach to evidence in the family court can accommodate circumstances in which a parent, either making or facing allegations of sexual abuse, seeks to adduce evidence of the other person's sexual history, or their own sexual history or their shared sexual history. To summarise, this involves the following process:</em></a><em></em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(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&nbsp;"wide canvas"&nbsp;of evidence;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(b) Thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>(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.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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). &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Knowles J gave the following legal framework to assist family judges in case management of evidence relating to ‘sexual history’ at [58]:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><!-- wp:list-item --> <li>If a party wishes to adduce evidence about a complainant's sexual history with a <em>third party</em>, a written application should be made in advance for permission to do so, supported by a witness statement.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Any such application will require the court's adjudication preferably at a case management hearing.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The court should apply the approach set out at [45]-[49].</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>If a party wishes to rely on evidence about sexual history between <em>partners</em>, 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&nbsp;Re M (Intimate Images)<a href="#_ftn11" id="_ftnref11"><u>[11]</u></a>.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>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.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Any such application will require the court's adjudication preferably at a case management hearing.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The court should apply the approach set out at [45]-[49] of the judgment.</li> <!-- /wp:list-item --></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>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.</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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<a href="#_ftn12" id="_ftnref12">[12]</a> 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. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Appeal in ABC</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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 <em>Re H-N</em>. 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 ‘<em>very troubling’</em><a href="#_ftn13" id="_ftnref13">[13]</a> 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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 ‘<em>t<a>he evidence in this case amply demonstrated the judge's awareness and application of Practice Direction 12J in her case management of these proceedings</a>’</em>.<a href="#_ftn14" id="_ftnref14">[14]</a> 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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Appeal in DE</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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 ‘<a><em>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&nbsp;<u>Re H-N</u>&nbsp;at [71])</em></a>’<a href="#_ftn15" id="_ftnref15">[15]</a> 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.&nbsp; Knowles J stated “<em>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</em>.”&nbsp; &nbsp;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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>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: <em>‘<a>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.</a>’</em><a href="#_ftn16" id="_ftnref16">[16]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A final observation from Knowles J was made, of key importance to management of cases concerning allegations of physical, sexual, emotional and domestic abuse.&nbsp; &nbsp;Neither judge at first instance had themselves produced <strong>schedules of findings</strong> (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 &nbsp;add to the pressures of busy family law judges, such a schedule represents good practice “<a><em>which may help to illuminate a judge's evaluation of the evidence and to inform their ultimate findings</em></a>.”</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> FPR rule 30.12(3)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> Re H-N at [2]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198, [82]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5" id="_ftn5">[5]</a> JH v MF (Child Arrangements) [2020] 2 FLR 344</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6" id="_ftn6">[6]</a> JH v MF [46]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref7" id="_ftn7">[7]</a> Cobb J in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) at [29]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref8" id="_ftn8">[8]</a> K v K [2022] EWCA Civ 468</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref9" id="_ftn9">[9]</a> Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (came into force on 1 November 2022)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref10" id="_ftn10">[10]</a> [42]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref11" id="_ftn11">[11]</a> <em>Re M (A Child)(Private Law Children Proceedings: Case Management: Intimate Images)</em> [2022] EWHC 986 (Fam)</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref12" id="_ftn12">[12]</a> <a>Equal Treatment Bench Book (July 2022), to the Crown Court Compendium and to the Crown Prosecution Service Guidance found at&nbsp;<em>"Rape and Sexual Offences - Annex A: Tackling Rape Myths and Stereotypes"</em></a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref13" id="_ftn13">[13]</a> [83]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref14" id="_ftn14">[14]</a> [89]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref15" id="_ftn15">[15]</a> [124]</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref16" id="_ftn16">[16]</a> [127]</p> <!-- /wp:paragraph -->

HXA v Surrey County Council and YXA v Wolverhampton City Council &#8211; a turning point in the scope of liability of public authorities for failing to protect children from abuse

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/may-martin/" target="_blank" rel="noreferrer noopener">May Martin</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The judgment of the Court of Appeal in <strong>HXA v Surrey County Council and YXA v Wolverhampton City Council [2022] EWCA Civ 1196</strong> is a guarded, yet potentially seismic, shift in the law relating to liability of public authorities for failing to protect children. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>THE FACTS</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Both <strong>HXA </strong>and <strong>YXA </strong>involve claims against local authorities for failing to protect children from suffering abuse at the hands of their parents. In <strong>HXA, </strong>Surrey County Council had been involved with the family for over 6 years. In that time, they had (amongst other things):</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Made a decision to obtain legal advice with a view to issuing care proceedings, but then subsequently not taken any action;</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>Made a decision not to investigate after the child made a report of sexual abuse; and</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>Made a decision to do ‘keeping safe’ work with the children and the family.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>In <strong>YXA, </strong>the local authority had an arrangement with YXA’s parents whereby YXA spent roughly one night a fortnight and one weekend every two months in foster care. The arrangement was made under section 20 of the Children Act 1989. The arrangement continued for approximately 18 months, during which there were increasing concerns about YXA’s treatment when in the care of his parents. YXA was subsequently accommodated full time under section 20 and a care order was made roughly two years later. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Procedural History</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Both claims were struck out at first instance. In <strong>HXA, </strong>Deputy Master Bagot QC decided that the case was virtually indistinguishable from <strong>Poole Borough Council v GN [2019] UKSC 25</strong> (in which, broadly, it was held that local authorities do not owe a duty of care in these circumstances)and so there was no real prospect of the claimants establishing a duty of care. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong>YXA, </strong>Master Dagnall concluded that no duty of care arose from the provision of accommodation under section 20 and so struck out the claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Both strike-out decisions were upheld by Stacey J. Stacey J noted that the actions of the local authorities were no more than the local authority ‘operating a statutory scheme’ and accordingly their actions did not create a duty of care. Stacey J held that the facts alleged in both cases were so closely analogous to <strong>Poole </strong>that the area can no longer be described as a developing area.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>THE LAW</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Children Act 1989</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Children Act 1989 imposes duties and confers powers upon local authorities and forms the basis of local authority involvement in the lives of children and their families. Under Section 17(1), local authorities have a general duty to safeguard and promote the welfare of children within their area who are in need.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There are two provisions that are particularly relevant for these cases.</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li><strong>Section 20 – </strong>this section relates to the provision of accommodation by the local authority. Under Section 20(1), the local authority has a duty to provide accommodation in certain circumstances (which are broadly where there is nobody else to provide the child with suitable accommodation). Under Section 20(4), the local authority has a power to provide accommodation for a child, even where someone else is able to, if the local authority considers that to do so would safeguard or promote the child’s welfare.</li><li><strong>Section 47 – </strong>this section deals with the local authority’s duty to investigate potential harm to a child. Under this section, where a local authority has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm, then the local authority must make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Duties of care owed by local authorities</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first step in establishing a claim in negligence is to establish that the local authority owed a duty of care to the children. The law relating to the situations in which a duty of care is owed is complex and an examination of the relevant case law is beyond the scope of this article. For those wishing to undertake a more detailed analysis of how the law in this area has developed, the judgment of Lord Reed in <strong>Poole </strong>is a very helpful summary.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Broadly speaking, in cases where the claim relates to a failure to act to prevent harm, as opposed to actively causing harm, no duty of care is owed unless the case falls into one of a number of well-recognised categories. The category which is usually relied upon by claimants in these cases is the ‘assumption of responsibility’ category. It works as follows:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>The general rule is that A owes no duty to B to protect B from harm which is inflicted by C. A is perfectly entitled to stand back and allow C to cause B harm. The law does not require A to intervene to stop C.</li><li>However, if A assumes responsibility for protecting B from C,&nbsp; that will create a duty of care.</li><li>That duty means that A has to actively do something to protect B. A can no longer simply stand back and allow C to harm B.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>How does A assume responsibility to protect B from C? A has to undertake to perform some task or to provide some service to B, together with an undertaking that A will take reasonable care in doing that task or service. The undertaking can be express (A could say that he will take reasonable care) but it is more commonly implied, usually from the fact that it was foreseeable that B would rely upon A to take care in doing the task or service.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>How does this apply to local authorities and children? In <strong>Poole, </strong>Lord Reed considered that nothing the local authority had done amounted to an assumption of responsibility towards the children. He concluded that the local authority’s investigating and monitoring, the allocation of a social worker, making the children subject to ‘child in need’ plans, performing an assessment under section 47, and making the children subject to child protection plans did not create an assumption of responsibility.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>COURT OF APPEAL DECISION IN HXA AND YXA</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Should the claims have been struck out?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal overturned the decision to strike out the claims. At [92], Baker LJ (giving the sole judgment) makes clear that the circumstances in which an assumption of responsibility arise is an intensely factual question that can only be answered on a case-by-case basis. He states at [100] that this is still an evolving area of the law and the ramifications following <strong>Poole </strong>are still being worked through. He notes at [101] that identifying whether or not there has been an assumption of responsibility may be a complex exercise in a case where the local authority has been involved over a number of years.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For those reasons, the Court of Appeal concluded that it would be wrong to strike out a claim before the evidence has been heard. There is further guidance given at [105] that the line between those cases where there has been an assumption of responsibility, and those cases where there has not, will only be developed through decisions reached after full trials.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In what circumstances will an assumption of responsibility arise?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As well as dealing with the question of strike out, the judgment goes on to discuss situations in which a local authority may have assumed a responsibility towards a child. Baker LJ is clear that <strong>Poole </strong>is not authority that an assumption of responsibility only arises in situations where the local authority has obtained a care order in relation to a child.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Section 20 accommodation</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first situation that Baker LJ addresses is in relation to ‘looked-after children’ i.e. children in care and children being provided with accommodation under section 20. Baker LJ concludes that an assumption of responsibility in relation to children accommodated under Section 20 is <em>‘not necessarily confined to the actual periods when the child was being accommodated.</em>’ Even for children who are only accommodated for a short period of time, the responsibility of the local authority may extend beyond the specific period of accommodation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The consequences of Baker LJ’s comments in relation to section 20 are not entirely clear. He gives an example of a child who, during a period of accommodation under section 20, informs the local authority that he is subject to sexual abuse at home. Baker LJ notes that the local authority’s duty to protect the child would continue after the end of the period of accommodation. Baker LJ notes that if the local authority simply returned the child home, it would be in breach of its statutory duty. So far, uncontroversial. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But Baker LJ goes on. He states that in such circumstances, the conduct of the local authority may amount, on certain facts, to ‘something more’<a href="#_ftn1" id="_ftnref1">[1]</a> so that the assumption of responsibility that arises therefrom may give rise to a duty of care at common law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When we look closer at this example, and in particular the reference to the ‘something more’, Baker LJ seems to suggest that accommodating a child under section 20 could, by itself, give rise to an assumption of responsibility. In the example given by Baker LJ, the local authority has done nothing more than accommodate the child. Whilst Baker LJ refers only to the possibility of an assumption of responsibility ‘on certain facts’, it not clear why he has chosen that particular example if not to suggest that a duty of care would arise upon those facts.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At [102] Baker LJ applies the principle to the facts of <strong>YXA. </strong>He states, ‘<em>I consider it is certainly arguable that an assumption of responsibility may arise when a child is voluntarily accommodated in respite care as occurred in the case of YXA. He was accommodated with the same carers under a regular programme of short breaks or respite care because of concerns about his welfare in the care of his parents. He thus became a looked-after child whose welfare the local authority was under the statutory duty to safeguard and protect. I do not agree with the interpretation preferred by the master and the judge that this was merely an assumption of responsibility leading to a duty of care in relation to the accommodation itself. the duty to safeguard and protect his welfare was not necessarily confined to the limited period when the child was accommodated…In the case of YXA, therefore, I conclude that a local authority accommodating a child under section 20 is capable of amounting to ‘something more’ so as to give rise to an assumption of responsibility by the local authority.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This conclusion lends support to the suggestion that simply accommodating a child under section 20 can, in certain circumstances (potentially in YXA’s circumstances) give rise to an assumption of responsibility. That is significant. <a id="_ftnref2" href="#_ftn2">[2]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Cases where a local authority takes, or resolves to take, a specific step to safeguard a child which amounts to an assumption of responsibility</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The second situation discussed by Baker LJ is where the local authority decides to undertake or commission a specific piece of work to assess the level of risk and/or protect a child from a particular type of harm. This is plainly a reference to the case of <strong>DFX </strong>where the local authority commissioned a psychology report to assess the risk of harm to the child, and it was held that such an act did not create a duty of care on the part of the local authority.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Baker LJ questions two elements of the decision in <strong>DFX</strong>:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Whether it was right to conclude that the commissioning of the report was for the local authority’s benefit and not for the benefit of the child.</li><li>Whether it was right to say that it was not reasonably foreseeable that the child would rely upon the local authority to exercise reasonable care and skill when deciding whether to start care proceedings.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The relevance of those doubts raised by Baker LJ is that one recognised category of cases where a duty of care is owed to the child is where a local authority involves a specialist to provide an assessment, and that specialist can be said to be providing a service not just to the local authority, but to the child (or the child’s parents) themselves<a href="#_ftn3" id="_ftnref3">[3]</a>. Such a category has (so far) been confined to an educational context.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, if Baker LJ is right, and a psychological report obtained by social services could be said to be commissioned for the benefit of the child, the category could be extended beyond the educational context into the social care context. It would allow claimants a different avenue by which to establish that there has been an assumption of responsibility towards them.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Looking more broadly at Baker LJ’s comments, two features stand out.</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Baker LJ refers to a ‘decision to undertake or to commission a specific piece of work to assess the level of risk’. On one reading, although it would be an extraordinary extension of the law, that could include all cases where the local authority makes enquiries under Section 47. Section 47 requires a local authority to ‘make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.’ In undertaking a Section 47 investigation, is the local authority not deciding to undertake a specific piece of work to assess the level of risk to the child?</li><li>Baker LJ refers not only to situations where the local authority actually takes a specific step to safeguard a child but also to situations where the local authority ‘resolves to take’ such a step. A frequent issue in cases of this nature are that the local authority makes a decision about a particular action to be taken, and then subsequently fails to take it. Under the law as understood following <strong>Poole, </strong>claimants would be unable to establish a duty of care in such cases precisely because the local authority had not done anything (as opposed to doing something negligently). Baker LJ’s statement appears to suggest that a duty of care could arise merely from the act of deciding to take a step, even if that step is subsequently not undertaken.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>At [103], Baker LJ applies the principle to <strong>HXA. </strong>He notes that the decision to seek legal advice with a view to initiating care proceedings and to carry out a full assessment could amount to an assumption of responsibility. Further, he states that the agreement to carry out keeping safe work could amount to ‘something more’ so as to amount to an assumption of responsibility. Again, these are extraordinary statements which have the potential to significantly widen the scope of public authority liability in these cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>COMMENT</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first point to note is that the Court of Appeal expressly stated it was not laying down any guidance in relation to the circumstances in which a local authority assumes responsibility so as to give rise to a duty of care. That, according to Baker LJ, is a question which <em>‘can only be answered definitely on a case by case basis by reference to the specific facts of each case.’ </em>The judgment does not mean that a duty of care will be owed in any or all cases such as <strong>HXA </strong>and <strong>YXA </strong>moving forwards. All that the judgment does, strictly speaking, is conclude that the situation is not so unarguable from the point of view of a claimant that these cases should be struck out.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Despite that, it must be said that the decision and (more importantly) the reasoning is a substantial departure from <strong>Poole. </strong>Under <strong>Poole, </strong>the broad position was thought to be that nothing short of the making of a care order would amount to an assumption of responsibility. Section 47 investigations, care plans, child protection plans, section 20 accommodation etc. was not sufficient. <strong>HXA </strong>and <strong>YXA </strong>changes the landscape.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is noticeable that Baker LJ distinguishes <strong>Poole </strong>from <strong>HXA </strong>and <strong>YXA. </strong>He does so on the basis that <strong>Poole </strong>was, for all intents and purposes, not a true failure to remove case. It was a case about children being harassed by their neighbours. That is not a situation which the Children Act was designed to deal with. I anticipate that all claimants moving forwards will seek to distance themselves from <strong>Poole </strong>in a similar manner. I do wonder whether the unique facts upon which <strong>Poole </strong>was decided leave the door open for another Supreme Court decision to revisit this area. The principle of an assumption of responsibility is almost certainly too embedded into the law for there to be any significant change, but it is definitely open to criticism on the basis that the cases from which it developed (e.g. <strong>Hedley Byrne v Heller</strong>) bear no resemblance to the context of local authority care cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>WHAT DOES THIS MEAN?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Moving forward, there are 3 primary take-aways from the decision:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>It should not be the general practice for cases of this nature to be struck out on the basis that there is no duty of care owed. These cases need to proceed to full trials. This may have an effect on the approach that local authorities take to defending and/or settling such cases.</li><li>This is a developing area of law in which this judgment hints at a significant expansion in the scope of duties owed by public authorities to children in these types of cases.</li><li>There will be many more decisions in this area as the precise line between an assumption of responsibility and no assumption of responsibility is worked out. One case to note is the case of <strong>Champion v Surrey County Council, </strong>in which HHJ Roberts refused to strike out the claims, which is due to be heard by the Court of Appeal later this year.</li></ol> <!-- /wp:list --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> The reference to ‘something more’ arises out of the judgment of Stacey J in the High Court decision on <strong>HXA </strong>and <strong>YXA. </strong>Stacey J examined the authorities on assumption of responsibility, noting that the mere fact that a public authority is operating within a statutory scheme does not, of itself, generate a common law duty of care. Stacey J went on, ‘Whether a duty of care is generated by an assumption of responsibilities depends upon whether there is, putting it colloquially, ‘something more’: either something intrinsic to the nature of the statutory function itself which gives rise to an obligation on the defendant to act carefully in its exercising that function, or something about the manner in which the defendant has conducted itself towards the claimants which gives rise to a duty of care.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> It is even more significant when we return to the decision of Stacey J in the High Court. She notes that a duty of care arises when a care order is made because at that point the local authority has parental responsibility for the child, which is the ‘something else’ sufficient to amount to an assumption of responsibility. In section 20 cases, the local authority does not have parental responsibility for the child. What, then, is the something more? Baker LJ seems to be suggesting that the provision of accommodation alone is sufficient for an assumption of responsibility.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn3" href="#_ftnref3">[3]</a> See <strong>Phelps v Hillingdon London Borough Council [2001] 2 AC 619</strong></p> <!-- /wp:paragraph -->