At the conclusion of a fact-finding hearing in private law proceedings where the mother made allegations of domestic abuse by the other parent, specifically rape and sexual assault, the trial judge dismissed all the findings sought by the mother. The mother’s appeal against that judgment, raising 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, was dismissed. The mother was granted permission for a second appeal seeking to challenge the decision both with respect to the judgment itself, where it was acknowledged that the trial judge had applied the wrong law and had failed to refer to FPR Practice Direction 12J (Child Arrangements and Contact Orders: Domestic Abuse and Harm) (“PD12J”) (“the case-specific grounds”), and also on more general issues including inter alia: (i) that the appeal 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 and that she had been wrong to hold that it was a matter for Parliament to legislate on such definitions; and (ii) that such errors of law breached the mother’s rights under articles 6, 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
On the appeal—
Held, appeal dismissed. (1) The appeal judge had been correct in holding that the Family Court ought to hold back from introducing and then developing its own freestanding 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 made no provision for any of the propositions of law raised in the appeal. For the court now, unilaterally, 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 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. Furthermore, the judge had been correct to reject the assertion that failure to apply consistent definitions of rape, sexual assault or consent in Family proceedings breached the rights of complainants under articles 6, 8 and 14 of the Human Rights Convention since, although domestic abuse engaged those rights, there was no domestic or international authority which supported the proposition that the state was required to adopt a definition of those matters in civil proceedings relating to the welfare of a child, nor did different decisions by different judges on different facts and different evidence establish a conflict of approach between different courts. On the issue about past sexual relationships, the appeal judge had been correct to draw a distinction between evidence of past sexual history with a third party and that arising from the relationship between the two parties who were before the court, rightly recognising that issues of propensity might be relevant in the former. In the latter case, as the appeal judge had stated, a party who sought to rely upon evidence of the parties’ own sexual history ought to give notice and sufficient particulars of the nature of the evidence sought to be adduced to enable the other party to seek to disapply the default position. There was no basis for holding that the judge had been in error or otherwise wrong to set the default position in relation to evidence of sexual history as she had. It followed that the general policy-based grounds of appeal failed and that the decision of the appeal judge on those important matters stood and was endorsed by the court (paras 8, 16, 27, 28, 30).
(2) With regard to the case-specific grounds of appeal, the first ground of appeal was based upon the assertion that the trial judge “applied” the criminal test when reaching her conclusion. That, as the appeal judge had observed, was based on a misapprehension and her conclusions that the mother’s allegations were not made out were simply based upon the factual evidence before the court without any evaluation as to the criminal law or any other legal construct. The second ground of appeal asserted that the trial judge had failed to consider PD 12J or the relevant authority; however, looking at her judgment as a whole it was clear that the trial judge had undertaken a full survey of the evidence and had correctly determined how the parties had behaved towards each other so that the appeal judge had been correct to reject the assertion that a failure to refer to, or recite, the relevant Practice Direction or authority was a fatal flaw. Finally, on the contention that it was simply not open to the appeal judge to hold that the weight attributed by the trial judge to the evidence of the resumption of sexual relations was permissible, both judges enjoyed a substantial discretionary margin when dealing with the attribution of weight (paras 1, 43, 51, 52, 58, 63, 64).
Anthony Metzer KC and Charlotte Proudman (instructed by E H Dawson, Bexleyheath) for the mother.
Deirdre Fottrell KC and Tom Wilson (instructed by Jones Myers, Leeds) for the father.
Rachel Langdale KC and James Hargan (instructed by Pepperells, Lincoln) for the child, by the children’s guardian.