Introduction

On 02 December 2022, Mrs Justice Knowles handed down judgment helpfully dealing with five general propositions of family law that will no doubt assist practitioners dealing with allegations of domestic abuse, but particularly those alleging sexual abuse from one parent against another in private law children disputes.

I will primarily focus on the guidance given to each of the propositions. Firstly, I will briefly summarise the cases that were the subject of appeal, they are not the focus of this article and I don’t intend to dwell on the facts. 

The Appeal

In short, the appeal concerned two cases: ABC and DE. In ABC, the first instance judge dismissed all of the findings sought by the mother which included rape, sexual assault, coercion, physical and emotional abuse, and coercive and controlling behaviour. Permission to appeal was granted on the following grounds: (a) that the judge had erred in law in importing a criminal definition of rape which infected and coloured her analysis and findings; (b) that the judge had failed to apply leading case law concerning rape, domestic abuse, and coercive controlling behaviour and had failed to apply PD12J; (c) that the judge was wrong to place significant weight on the past sexual conduct of the mother when assessing her allegations of rape, domestic abuse and coercive and controlling behaviour.

Knowles J stated the first instance judge’s reference to defining rape within the meaning of the Sexual Offences Act 2003 was very troubling however, that error did not infect her substantive decision making in accordance with legal principles applicable in fact finding in the Family Court.

In respect of the other grounds, Knowles J held that PD12J had clearly been considered and the Judge had not placed improper weight on the mother’s past sexual conduct. The appeal was dismissed.

In DE, the first instance judge had made some findings against the father but did not make any findings in respect of the allegations of rape and non-fatal strangulation.

The Appellant argued, amongst five grounds of appeal, the judge had failed to stand back and consider the significance of the findings he had made about the parties’ sexual relationship and set these out against the other findings he had made about the father’s behaviour. Knowles J considered the judge at first instance had failed to consider whether his findings amounted to behaviour which, though falling short of establishing rape or non-fatal strangulation, were nevertheless abusive. Secondly, the judge had found other examples of abusive conduct by the father towards the mother such as verbal abuse which could have established a pattern of abusive behaviour when looking at the bigger picture. Failure to evaluate whether there was a pattern of abusive behaviour had significant implications for the welfare analysis Cafcass and the court would ultimately undertake. The Appeal was allowed.

As mentioned above, it is the propositions of law discussed in this judgment that are of particular significance and which I shall deal with throughout the rest of this article in turn. Before I do so, what is also of note is Knowles J emphasised the importance of judges producing a schedule of findings to be annexed to the order following the fact find hearing. Both first instance judges had not done so in these cases which caused some difficulty as to the certainty of what facts the respective judge had actually found.

Propositions of Law

  • Whether the family courts should apply a consistent definition of: (a) rape; (b) sexual assault; (c) consent, making clear the difference between consent and submission.
  • 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.

Knowles J held the Family Court should not impose criminal definitions as an aid to fact-finding. Family courts determining allegations of rape and sexual assault without a legislative definition or framework is consistent with the purpose of fact finding in family proceedings, i.e., to determine only such factual issues as necessary to assess risk and illuminate welfare issues.

Her firm view was that seeking to characterise or establish behaviour as meeting a particular definition runs the risk of the court becoming “unnecessarily bogged down in legal technicality” (F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam)). The judgment goes further in stating that criminal definitions would narrow the Family Court’s focus inappropriately away from the wider consideration of familial relationships; a family judge must consider a “wide canvas”, as endorsed by the Court of Appeal in K v K [2022] EWCA Civ 468 at [61].

The inclusion of a framework which sets out the elements of an allegation to be proven, as advocated by the Appellants in this appeal, runs the risk of becoming a ‘tick box exercise’ rather than a holistic evaluation of the evidence by the court of first instance.

It was acknowledged that the Family Court does rely on some principles established in the Criminal Court, such as the Lucas direction with respect of lies. However, the judgment notes that such examples do not contain definitions of criminal concepts or frameworks for establishing an offence but rather evaluating the evidence more generally.  

  • Whether the failure to have a consistent approach to these issues is in breach of the Appellant’s Article 6, 8 and 14 rights.

This proposition was rejected.

It was accepted domestic abuse does engage these rights and that there are positive obligations on the State to protect individuals from domestic abuse but the court rejected the Appellant’s argument that it translated into an obligation to construct a legal framework defining rape and sexual assault in the Family Court.

The fact that judges have wide-ranging discretion, having had the benefit of hearing the evidence and assessing a witness’ credibility, does not mean that there is a conflict of approach; simply put different judges reach different decisions on their assessment of that evidence as a whole.

  • What the approach of the Family Court should be to a complainant’s sexual history when determining allegations of rape or sexual assault.

The starting point is family judges have the discretion to control the evidence (FPR r22.1(1)). The approach involves (a) an assessment of relevance of the evidence for which permission is sought to adduce it, followed by (b) a balancing exercise as to the competing interests.

Admissibility is determined by relevance which in turn is a question of fact, degree, and proportionality (Dunn v Durham County Council [2013] EWCA Civ 1654). Contemporaneous documents will always be of the upmost importance given memories become fainter overtime [49].

A balancing exercise will involve evaluating the impact on each person’s rights under the Convention; consideration can be given to how any negative impact could be mitigated such as redaction, and anonymity in the proceedings, particularly where evidence may be in the form of text messages or images.

The court and parties agreed that a complainant’s sexual history with a person not involved in the proceedings would rarely be relevant. A written application for permission should be made and that party has the burden of persuading the court as to the necessity and relevance of the material sought to be adduced. [58].

A complainant’s sexual history with the alleged perpetrator may be logically probative to an allegation; thus, communications between the parties of a sexual nature may be relevant [54]. That approach is in keeping with the court considering a wide canvas of evidence in having regard to patterns of behaviour (Re H-N). In particular:

  The emphasis is on relevance.

  It should not require a specific application for permission (unless also relating to intimate images (Re M (A Child) (Private Law Children Proceedings: Case Management: Intimate Images [2022] EWHC 986 (Fam)) [58].

  If there is an objection to the evidence of sexual history between parents/parties being filed, the party objecting should make an application to the court in advance, supported by a witness statement explaining why the material is irrelevant. The court should then use its case management powers and determine the application with regard to admissibility and a balancing exercise as discussed above.

  • 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.

Essentially, Knowles J held judicial training is a matter reserved to the Judicial College however, the Judge gave references to two resources she found helpful and are publicly available: Chapter 6 of the Equal Treatment Bench Book (July 2022), subparagraph “Sexual Offences: Who is Affected?” and Rape and Sexual Offences – Annex A: Tackling Rape Myths and Stereotypes: The CPS (May 2021). 

In short, the judgment is a helpful reminder that the Family Court is a separate jurisdiction from the Criminal Court and the Family Court should not be readily importing definitions and concepts from the criminal justice system to determine allegations of domestic abuse.

Written by Callum Hurley, Consultant Barrister

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