Adele Rainsford, current Pupil, of the Lamb Building Family Team explores how Family Courts handle allegations which involve a criminal element while considering the recent High Court case of A & Anor v B & Ors [2022] EWHC 3089 (Fam).

The Family Courts over recent years have found themselves grappling with the interrelationship between the Criminal law and how such cases should be dealt with in the Family Courts. This has particularly been evidenced in cases where there has been allegations of rape and sexual assault.

It was thought by some that the case of Re H-N and others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA 448 had already considered these issues and had provided clear guidance as to how the Family Court should deal with such allegations of criminality. In summary, Re H-N held at paragraph 71:

“The Family Court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict definition of ‘rape’, ‘murder’, ‘manslaughter’ or other serious crimes….

Behaviour which falls short of establishing ‘rape’, for example may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to ‘not guilty’ in the family context. For example, in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the borderline as between “consent” and “submission”, may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault.”

However, despite the guidance given above, in the most recent case of A & Anor v B & Ors [2022] EWHC 3089 (Fam), Knowles J was tasked with grappling with these issues once more and was required to give some further guidance.

The five main issues which were to be considered by Knowles J in this instance were:

1. 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;
2. Whether the failure to have a consistent approach to these issues was in breach of Article 6, 8 and 14 rights of the Appellant mothers;
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;
4. What the approach of the Family Court should be to a complainant’s sexual history when determining allegations of rape or sexual assault; and
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.

First and Third Issue:

Knowles J took issue one and three together and found [23]:

“In my view, the correct starting point is that the Family Court must not import criminal definitions as an aid to fact-finding. Its focus, as Re R and Re H-N made clear, is to determine how the parents of a child behaved towards each other so as to be able properly to assess risk and determine the welfare issues in each case. I note that Parliament recently passed the Domestic Abuse Act 2021 and, in so doing, expressly replicated in the Family Court some provisions applicable in the criminal courts, for example, in relation to cross-examination by litigants in person. However, Parliament declined to legislate for a framework in the Family Court within which to determine allegations of rape and sexual assault: it was not invited to do so during the passage of the Act. In those circumstances, it is difficult to conceive that this court might now attempt to do so….

At first instance, the Family Court determines allegations of rape and sexual assault without a legislative definition or framework. That is consistent with the purpose of a fact-finding exercise in family proceedings, which is to determine only such factual issues as are necessary to assess risk and to illuminate the welfare issues. That approach in private law proceedings is consistent with the approach in public law proceedings in which the Family Court conducts fact-finding in circumstances where, for example, a parent is alleged to have caused the death of a child, or where a parent is alleged to have inflicted injury on a child.

The Appellants placed reliance on examples of variable approaches taken by first instance judges sitting in the Family Court to the factual determination of allegations of rape or sexual assault. It is unnecessary for me to identify the judgments in issue since the relevance of those decisions was not the characterisation of behaviour by reference to concepts of consent or submission to sexual intercourse but rather that the court had accurately determined narrative findings which could inform the subsequent risk and welfare analysis.”

Knowles J continued and referred to Mc Farlane’s LJ judgment (as he then was) of Re R (Children) (Care Proceedings: Fact Finding Hearings) [2018] EWCA Civ 198 at [62]:

“The focus and purpose of a fact-finding investigation 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 the Criminal court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination of acts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare…

… In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established”.

In short, Knowles J found that a family judge must consider a “wide canvas” and scrutinise the family relationships (whether of adult to adult or adult to child) over a period of time in order to arrive at a factual determination relevant to both risk and welfare. The framework provided by the Appellants in this case, was considered to be too narrowly focused on the specifics of whether a sexual relationship is “willing” or not. In essence, Knowles J concluded that such a framework would simply substitute the word “willing” for “consent” and would be as prescriptive as applying the concepts used in the Criminal Courts. The framework was considered to be a too narrower prism to view and investigate the true nature of an adult relationship.

Knowles J rejected that the Family Court needed to apply consistent definitions of rape, sexual assault and consent by confirming that these definitions “have no place in the Family Court” [32]. She repeated 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” (F v M (Appeal: Fact Finding of Fact) [2019] EWHC 3177 (Fam) [29]).

Second Issue:

Knowles J proceeded to consider the second issue and stated that there was no basis for concluding that the approach of the Family Courts in relation to allegations of rape or sexual assaults was a breach of Article 6,8 and 14. Whilst there was clear jurisprudence from the European Court of Human Rights as to the positive obligations of the State to protect individuals from domestic abuse, the High Court found that the Appellants had failed to make out a case that the obligation of due diligence translated into an obligation to construct a legal framework in the terms which they had set out.

Fourth Issue:

Knowles J was in agreement that guidance would be beneficial in relation to the introduction of evidence of sexual history as PD 12J did not provide specific guidance on this issue. Hence, Knowles J set out a proposed framework for practitioners to use at paragraph 49 of her judgement:

“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:

1. 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;
2. Thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved;
3. 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.”

Knowles J declined the Appellants argument that there should be a strong presumption against the admission of evidence relating to a complainant’s sexual history with an alleged perpetrator and declined to also declare that the circumstances should be exceptional. Knowles J explored this further at paragraphs [55] and [56] of her judgment:

“It also runs contrary to the basic principle that, by adopting an inquisitorial approach, the court requires the best relevant evidence before it to assess both the risk posed by a parent or the welfare best interests of the child. Second, and practically speaking, the Appellant’s approach runs the risk of depriving the court of evidence relevant to its factual determination. I observe that there may well be circumstances in which evidence of sexual history as between partners is relevant to the court’s assessment of the dynamic, their respective patterns of behaviour and the nature of their relationship.

Based on the analysis above, I do not regard it as necessary for a party wishing to rely on evidence of sexual history between partners to make a specific application to the court for permission to do so. Practically speaking, this would add complexity and cost to already contentious children proceedings where a high proportion of litigants are self-representing.”

Knowles J noted that a complainant may also wish to adduce evidence of an alleged perpetrator’s sexual history with other individuals to demonstrate a pattern of allegedly abusive behaviour. Hence, Knowles J provided further guidance to assist judges in case management decisions and offered a procedural framework which was based on that articulated in Re M (A Child) (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam), namely [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 above 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).
• If a party objects to evidence of sexual history between parents/parties being filed, it 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 above at [45]-[49].”

Fifth Issue:

Knowles J acknowledged that Judicial training is a matter reserved to the Judicial College and that they are best placed to assess what training is needed for those who are tasked with determining factual disputes between parents about the nature of their relationship, especially where those disputes concern allegations of sexual assault. Knowles J highlighted the training already available to family judges which is also set out in the case of Re H-N at paragraphs [67]-[68]:

“Following the judgment of Russell J and at the request of the President, the Judicial College devised a freestanding sexual assault awareness training programme for Family judges. The programme draws heavily on the successful “serious sexual assault” programme for criminal judges. Since July 2020, it has been a mandatory requirement for all judges who hear any category of Family cases to undertake this programme. The programme, which is under constant review, includes elements in respect of psychological reactions to sexual assault and trauma, and has the benefit of contributions having been made by a number of victims of sexual assault discussing the impact that an attack has had upon them. In addition to the more general training in relation to domestic abuse, which is already in place for Magistrates, bespoke training suitable for the work they undertake in respect of sexual assault and trauma is in the process of being developed.

This bespoke Family training these in turn into, and is further developed within, the extensive training programmes that are run in relation to domestic abuse by the Judicial College for the fee paid and salaried judges. These courses have been in place for some years and play a key role in both induction courses for newly appointed Family judges and continuation courses run for Family judges who are already in post” [62].

Knowles J listed some further resources which she had found as assistance in her own practice and drew family judges’ attention to the following:

• Chapter 6 of the Equal Treatment Bench Book (July 2022) entitled “Gender”. Under a subheading entitled “Sexual Offences: Who is Affected?”, there is information about sexual offences which includes several paragraphs addressing rape myths which may feature in criminal proceedings (see [74]-[91]).
• The Equal Treatment Bench Book is publicly available on the judiciary.uk website at Equal Treatment Bench Book July 2022 revision (2) (judiciary.uk).
• Likewise, the CPS Guidance on Rape and Sexual Offences at Annex A provides a comprehensive guide to the unhelpful stereotypes which may cloud judicial thinking in cases involving sexual assault. It too is publicly available on the cps.gov.uk website and was last revised in May 2021: Rape and Sexual Offences –Annex A: Tackling Rape Myths and Stereotypes | The Crown Prosecution Service (cps.gov.uk).

Knowles J also came to the firm view that she should not produce a list of rape myths or stereotypes as no list would ever be comprehensive and would provide a rigid framework. Such a list she considered, would deprive a family judge of the flexibility required in approaching a case.

Finally, (and slightly off topic) Knowles J did remark that in cases where findings of fact are made it is helpful to ensure that they are recorded in writing and ideally appended to the order made as set out by Paragraph 29 of PD12J. This requires a schedule of findings to be attached to the court order following a fact-finding determination to avoid lack of clarity and the details of what is found.

To conclude, it is clear that Knowles J while providing some guidance in respect of the fourth and fifth issues largely upheld the principles of Re-H-N and confirmed that importing criminal definitions into fact finding proceedings has no place in the Family Courts.

Reminder: This article is not to be viewed as legal advice and is simply for educational purposes and to help keep practitioners up to date on the key legal framework.

Our next article will explore the Court’s case management powers in respect of limiting evidence and the recent case of Mother v Father [2022] EWHC 3107 (Fam) and will be posted on the 30th of January 2023.

16^th January 2023