A v B

The Family Court does not need to apply consistent definitions of rape, sexual assault and consent, and must not import the criminal definitions of those concepts as an aid to fact-finding. 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 illuminate the welfare issues. Applying criminal definitions narrows the court’s focus inappropriately away from the wider consideration of family relationships at play in a fact-finding hearing. The Family Court 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 absence of a consistent approach to rape, sexual assault and consent does not breach the rights under articles 6, 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms of those alleging such conduct (post, paras 23–31, 34–39, 43).

In re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] 1 WLR 1821, CA and In re H-N (Practice Note) [2022] 1 WLR 2681, CA applied.

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. This involves the following process: (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 “wide canvas” of evidence; (b) thereafter, where objection is made to such evidence being adduced, a balancing exercise as to the competing interests and Convention rights involved; (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 (post, paras 46–51).

Dunn v Durham County Council [2013] 1 WLR 2305, CA applied.

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. 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. 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 (post, para 58).

K v L (Practice Note) [2022] 1 WLR 4297 applied.

The Equal Treatment Bench Book contains information about sexual offences, including several paragraphs about rape myths, which judges in the Family Court may find useful. Likewise, the CPS Guidance on Rape and Sexual Offences provides a comprehensive guide to the unhelpful stereotypes which may cloud judicial thinking in cases involving sexual assault (post, para 63).

FPR PD 12J, para 29 requires a schedule of findings to be attached to the court order following a fact-finding determination. It is desirable that, with the definitions of domestic abuse contained in PD 12J firmly in mind when doing so, a judge produces her/his own schedule of findings, either incorporated into the body of a judgment or appended to its conclusion. That course avoids any lack of clarity about the detail of what the judge found, and any schedule can then be incorporated in or appended to the court’s order (post, para 127).