A v B
| Jurisdiction | England & Wales |
| Judge | Sir Andrew McFarlane P,Lady Justice Macur,Lord Justice Peter Jackson |
| Judgment Date | 07 March 2023 |
| Neutral Citation | [2023] EWCA Civ 360 |
| Docket Number | Case No: CA-2022-002473 |
| Court | Court of Appeal (Civil Division) |
and
[2023] EWCA Civ 360
Sir Andrew McFarlane PRESIDENT OF THE FAMILY DIVISION
Lady Justice Macur
and
Lord Justice Peter Jackson
Case No: CA-2022-002473
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MRS JUSTICE KNOWLES
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Anthony Metzer KC and Dr Charlotte Proudman (instructed by EH Dawson Solicitors) for the Appellant
Ms Deirdre Fottrell KC and Mr Tom Wilson (instructed by Jones Myers) for the 1 st Respondent
B Ms Rachel Langdale KC and Mr James Hargan (instructed by Pepperells Solicitors) for the 2 nd Respondent C
Hearing dates: 7 th March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 5 th April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
On 2 December 2022, Mrs Justice Knowles handed down judgment in two appeal cases that had been heard together in the High Court. 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 are made in the context of private law proceedings. On 6 February 2023, King LJ granted permission to the appellant in one of the two cases for a second appeal seeking to challenge Knowles J's decision in that case both with respect to the case itself and also on the more general issues. The appeal was heard on 7 March 2023 and, at the conclusion of oral argument, we announced our decision which was that the appeal was to be dismissed on all grounds. This judgment sets out my reasons for reaching that decision.
I propose first to consider the general matters raised before Knowles J that have been renewed on appeal, before moving on to consider the individual grounds of appeal concerning the facts of this particular case.
The general propositions considered by Knowles J
At the first appeal hearing, Knowles J was invited to consider the following propositions:
a. 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;
b. Whether the failure to have a consistent approach to these issues was in breach of the Articles 6, 8 and 14 rights of the Appellant mother [under the European Convention on Human Rights];
c. 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;
d. What the approach of the Family Court should be to a complainant's sexual history when determining allegations of rape or sexual assault; and
e. 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.
In the course of a full and closely structured judgment, Knowles J considered each of these matters in turn ( [2022] EWHC 3089 (Fam)). Having considered Knowles J's judgment both at the time that it was handed down and now, in more detail, for the purpose of this appeal, I am in full agreement with what is said there. There is therefore a danger that anything said in this judgment may be pored over for signs of difference of judicial opinion where, in reality, there is none. It is, however, necessary to consider the matters that have properly been raised by Mr Anthony Metzer KC and Dr Charlotte Proudman on this second appeal. I therefore propose to summarise Knowles J's determination on these overarching issues, before considering the Appellant's submissions and setting out my conclusions on these points, but my intention is not to differ in any material particular from the more comprehensive analysis that has been provided by Knowles J.
Before turning to the specific propositions, Knowles J considered the overall approach that she should adopt as a judge sitting at appellate level. She concluded that it was not appropriate for a judge to step in to fill any apparent lacuna left by Parliament and that, as advised by Lord Dyson MR in Re K and H (Children: Unrepresented Father: Cross-examination of Child) [2016] 1 FLR 754, judicial restraint was called for. There was no legal basis, therefore, 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 is not my role to construct a substantive framework for determining allegations of rape and sexual assault in the Family Court’ (paragraph 12).
(a) and (c) Family Court definition of ‘rape’, ‘sexual assault’ and ‘consent’?
In response to the submission by Mr Metzer that there should be a clear and consistent approach to rape, sexual assault and consent in Family proceedings, Knowles J concluded as follows:
a. The Family Court must not import criminal definitions as an aid to fact-finding paragraph 23];
b. At first instance, the Family Court determines allegations of rape and sexual assault without a legislative definition or framework [paragraph 24];
c. 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’ (see paragraph 29 in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) [Cobb J]);
d. Applying criminal definitions narrows the court's focus inappropriately away from the wider consideration of family relationships at play in a fact-finding hearing;
e. 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 ( K v K [2022] EWCA Civ 468 paragraph 61);
f. The focus of a fact-finding exercise in children cases should be on whether the adult relationship was/is characterised by coercion and/or control. It should be on a wide canvas but should be limited only to those factual matters which are likely to be relevant to deciding whether to make a child arrangements order and, if so, on what terms ( K v K paragraph 67);
g. Criticism of PD12J for failing to assist in determining specific factual allegations of sexual abuse was misplaced as PD12J sets out a procedural framework for case management, rather than one for evaluating evidence.
Knowles J therefore rejected the need for the Family Court to adopt and apply consistent definitions of rape, sexual assault and consent.
(b) Failure to apply a consistent approach to these issues: breach of ECHR, Arts 6, 8 and 14
Knowles J rejected the submission that 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 for the following reasons:
a. Whilst domestic abuse engages a complainant's rights under Arts 6, 8 and 14, there is no domestic or international authority which supports the proposition that the State is required to adopt a definition of these matters in civil proceedings relating to the welfare of a child (paragraphs 34 and 35);
b. That there are and will be different decisions by different judges on different facts and different evidence does not establish a conflict of approach between different courts and is not a breach of Art 6 (paragraph 37).
For those, and other reasons set out at paragraphs 38 to 42, Knowles J was ‘wholly unpersuaded’ that the Appellants had established proposition (b).
(d) Approach to complainant's past sexual history
Knowles J, with the encouragement of all parties, accepted that there 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. Before offering a procedural framework to assist Family judges in their case management task in this context, Knowles J reviewed the underlying legal framework and the general approach to evidence relating to sexual history in paragraphs 46 to 57. The procedural framework then follows at paragraph 58:
a. 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.
b. 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.
c. Any such application will require the court's adjudication preferably at a case management hearing.
d. The court should apply the approach set out by Knowles J at [45]–[49].
e. 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 (Private Law Children Proceedings: Case Management: Intimate Images) [2022] EWHC 986 (Fam).
f. If a party objects 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 this material is either irrelevant or should not be admitted.
g. Any such application will require the court's adjudication preferably at a case management hearing.
h. The court should apply the approach set out by Knowles J at [45]–[49].
(e) Should judges give...
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