Family Law – Case Update

Each month we will share a round-up of key cases, with links to full information and an overview of key learnings.

This month’s case summary is taken from Lexis PSL.

A v B and another [2023] EWCA Civ 360 

There were two appeals brought by the appellant mothers, A and D, each of which involved allegations of domestic abuse, rape and sexual assault, by them against the fathers, B and E. In the first appeal, A asserted, amongst other things, that B had been coercive and controlling in their relationship and had engaged in sexual intercourse without her consent on two occasions. In the second appeal, the mother, D issued proceedings against the father, E, following their separation. D’s case was that she had suffered serious emotional and physical abuse from E during their relationship whereas E attributed the breakdown of the marriage to the parties growing apart and to financial pressures as D was not working. In addition to factors specific to the individual cases, the appeals raised a number of overarching issues regarding the approach that should be taken in the Family Court where allegations of rape were made in the context of private law proceedings. The judge considered the following issues:

(i) whether the Family Court should apply a consistent definition of

(i) rape,

(ii) sexual assault or

(iii) consent,

making clear the difference between consent and submission; (ii) whether the failure to have a consistent approach to these issues was in breach of the arts 6, 8 and 14 rights of the appellant mother [under the European Convention on Human Rights (ECHR)]; (iii) 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; (iv) what the approach of the Family Court should be to a complainant’s sexual history when determining allegations of rape or sexual assault; and (v) 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 concerned themselves with the behaviour or experiences of a complainant. The judge considered each of these matters in turn. She made reference to the Family Procedure Rules 2010: Practice Direction 12J –Child Arrangements and Contact Orders: Domestic Abuse and Harm (PD12J). The appellant, A, in one of the two cases, appealed challenging the dismissal of her appeal. She sought to challenge the decision in that case both with respect to the case itself and also on the more general issues. The appellant sought to challenge the judge’s failure to provide clear definitions of rape, sexual assault and consent, or to require a consistent approach to past sexual history or rape myths, were ‘errors of law’. It was further asserted that such errors of law had breached the appellant’s rights under ECHR, arts 6, 8 and 14. It was also submitted that the judge was in error in holding that it was a matter for Parliament to legislate on definitions of rape, sexual assault or consent.

Issues and decisions
(1) The overall approach that a judge sitting at appellate level should adopt.
It was not appropriate for a judge to step in to fill any apparent lacuna left by Parliament; judicial restraint was called for. There was no legal basis, for the court to be used to construct an entirely new legal framework for the determination of factual issues in domestic abuse cases. Where, however, there was a need for guidance or observations aimed at clarification of the existing law and practice, then an appellate court was not precluded from meeting that need. The judge was ‘quite clear, however, that it was not his role to construct a substantive framework for determining allegations of rape and sexual assault in the Family Court’ (see [5] of the judgment).

(2) Whether there should be a clear and consistent approach to rape, sexual assault and consent in Family proceedings.
The Family Court had not to import criminal definitions as an aid to fact-finding paragraph. At first instance, the Family Court determined allegations of rape and sexual assault without a legislative definition or framework. A focus on seeking to characterise or establish behaviour as meeting a particular definition ran the risk of the court becoming ‘unnecessarily bogged down in legal technicality’. Applying criminal definitions narrowed the court’s focus inappropriately away from the wider consideration of family relationships at play in a fact-finding hearing. Application of an alternative definition for rape, sexual assault or consent created a danger of adopting too narrow a focus on the sexual relationship between two people. The focus of a fact-finding exercise in children cases should be on whether the adult relationship was characterised by coercion and/or control. It should be on a wide canvas but should be limited only to those factual matters which were likely to be relevant to deciding whether to make a child arrangements order and, if so, on what terms. Any criticism of PD12J for failing to assist in determining specific factual allegations of sexual abuse was misplaced as PD12J set out a procedural framework for case management, rather than one for evaluating evidence (see [6] of the judgment).

(3) Whether a failure to apply consistent definitions of rape, sexual assault or consent in Family proceedings breached the rights of complainants under ECHR, Arts 6, 8 and 14.
A failure to apply consistent definitions of rape, sexual assault or consent in Family proceedings had not breached the rights of complainants under ECHR, Arts 6, 8 and 14. Whilst domestic abuse engaged a complainant’s rights under art 6, 8 and 14, there was no domestic or international authority which supported the proposition that the State was required to adopt a definition of these matters in civil proceedings relating to the welfare of a child. That there were and would be different decisions by different judges on different facts and different evidence did not establish a conflict of approach between different courts and was not a breach of art 6 (see [8], [9] of the judgment).

(4) The correct approach to the complainant’s past sexual history.
The was a need for guidance on the approach that the Family Court should take to a complainant’s sexual history when determining allegations of rape or sexual assault. If a party wished 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 was 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 was required to determine. Any such application would require the court’s adjudication preferably at a case management hearing. If a party wished to rely on evidence about sexual history between partners, they did not need to make a specific application to do so unless reliance was also placed on intimate images. In those circumstances, the party had to issue an application in accordance with the guidance. If a party objected 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 the material
was either irrelevant or should not be admitted. Any such application would require the court’s adjudication preferably at a case management hearing (see [10] of the judgment).

(5) Whether the judge’s should give themselves a warning about rape myths.
The judge concluded that judicial awareness of rape myths was a matter best addressed during training and was, therefore, a matter for the Judicial College. She did, however, draw attention to various resources on the topic which were available to judges. He concluded that she should not produce a list of common rape myths, or attempt to craft a standard self-direction, as no list would be complete and to do so might run the risk of creating a rigid framework, where what was needed was judicial flexibility. Secondly, any self-direction would also be inflexible as it could not encompass the great variety of stereotypical thinking outlined in the resources listed in the preceding paragraph (see [11], [12] of the judgment).

(6) Whether the appellant’s submissions were valid.
Having considered the appellant’s submissions, it was, all the more plain that the judge had been correct in holding that the Family Court should hold back from introducing and then developing its own, free-standing, definitions of rape, sexual assault and consent. Parliament had comprehensively considered the Family Court’s approach to domestic abuse during the passage of the Domestic Abuse Act 2021 into law, yet that statute had made no provision for any of the propositions of law that had now been raised. For the court to step in and introduce wholly new legal requirements would be an exorbitant step and one far removed from merely filling a lacuna within existing legislative provision. It was as inappropriate for the Family Court to develop (no doubt over a number of test cases in the coming years) its own bespoke definitions, to be applied in fact-finding cases as a matter of law, to determine whether conduct was, or was not, ‘rape’ or ‘sexual assault’, or whether ‘consent’ had been given by a partner in such activities, as it was to adopt criminal law definitions and requirements (see [16] of the judgment).

Judges in the Family jurisdiction had consistently held that the Family Court should not be drawn into applying a strict definition akin to those of ‘rape’, ‘murder’, ‘manslaughter’ or other serious criminal activity (see [17] of the judgment).

Also the focus of the Domestic Abuse Act 2021, and of processes within the Family Court was to support and enhance the ability of victims to achieve recognition of past domestic abuse and protection from further such abuse in the future for themselves and their children. In that context, it was very difficult to understand why, on behalf of victims, it was submitted that a new and additional legal threshold should be introduced which a complainant had to satisfy before the court could find that they had been the victim of rape or sexually abusive behaviour (see [21] of the judgment).

(7) Whether having regard to the three grounds submitted, the appellant’s appeal should be allowed. The points taken on a second appeal were high level and related largely to the approach of the recorder to the law and practice, rather than the detailed facts of the case. The exception was ground 3 which had involved a particular factual aspect (see [33], [47], [53] of the judgment).
All grounds of appeal failed (see [48], [52], [58] of the judgment).

The judgement highlighted the importance of what should be a closely managed and comprehensive Case Management Hearing. If the court found that it was relevant to determine allegations of sexual misconduct, the supervision of evidence, both as to substance, nature and quantity should be sharply focused and not adjourned unless for good reason. Regardless that one party sought to rely upon a shared sexual history, the court would not be assisted by prurient detail. Neither party should be ambushed in the presentation or defence of their case and the prospect of satellite litigation should be determinedly curtailed (see [62] of the judgment).

Decision of Family Court [2022] EWHC 3089 (Fam) affirmed.
Tara Psaila, Barrister for Lexis PSL

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