JH v MF (Rev 2)

In family fact-finding proceedings involving alleged domestic abuse and sexual assault, fairness requires the court to implement the protections for vulnerable witnesses in Part 3A of the Family Procedure Rules 2010 and to give adequate reasons for procedural departures.

Consent to sexual activity depends on free agreement, including the freedom and capacity to choose. Physical resistance, violence, contemporaneous complaint or medical evidence is not required to establish absence of consent. Family courts should approach serious sexual-assault allegations consistently with the relevant principles of the criminal jurisdiction, while applying the civil standard of proof.

Findings must be based on evidence rather than suspicion or speculation. A judgment affected by serious procedural irregularity and material errors of law may require a retrial.

The appellant appealed against an order made after a fact-finding hearing in Children Act 1989 proceedings concerning child arrangements and allegations of domestic abuse, including non-consensual sexual intercourse. The respondent was unrepresented at trial, and the judge conducted his cross-examination of the appellant.

The appellant alleged that the hearing was procedurally unfair, that the judge failed to apply the guidance concerning domestic abuse and vulnerable witnesses, misunderstood consent, relied improperly on demeanour and irrelevant matters, failed to assess corroborative material, and applied too high a standard of proof.

The central issues were whether the hearing and judgment were rendered unsafe by procedural irregularity and errors of law, and whether the case should be retried.

1. Appeal allowed. The fact-finding judgment and order were unjust because of serious procedural irregularity and multiple errors of law. The matter was remitted for retrial before a High Court Judge or Deputy High Court Judge at the Royal Courts of Justice.
2. The appellant was a vulnerable witness within FPR 2010 r 3A.7. The judge was required by r 3A.5 to facilitate her best evidence and should have considered the measures in r 3A.8. Ordering her to give evidence from counsel’s row, contrary to her request and without adequate reasons as required by r 3A.9, was a serious procedural irregularity. Allowing the respondent to give evidence beside his McKenzie friend created an unfair and impermissible advantage.
3. The judge failed properly to apply PD12J. Domestic abuse may consist of a pattern of controlling, coercive, threatening, physical, sexual, psychological, emotional or financial conduct. Its cumulative and interlinked nature, and the significance of reports and third-party material, required proper consideration.
4. There is no principle that absence of consent must be demonstrated by physical resistance. Consent concerns agreement by choice, with freedom and capacity to make that choice. A complainant may be non-consenting while freezing, submitting or failing to resist. Violence or threats are not necessary ingredients. The family court must not approach serious sexual-assault allegations in a manner wholly at odds with the criminal jurisdiction, although it applies the balance of probabilities.
5. The judge wrongly treated the absence of physical resistance, immediate reporting and medical evidence as undermining the allegations. He also failed to consider whether the appellant had submitted rather than consented, and relied on speculation in finding that she had herself acted aggressively.
6. The applicable standard of proof was the ordinary balance of probabilities. The judge’s concern about finely balanced findings indicated that he had applied, or appeared to apply, a higher standard. Findings had to be based on evidence and proper inferences, not suspicion or speculation.

• High Court (Family Division): JH v MF (Rev 2) [2020] EWHC 86 (Fam) allowed the appeal from the Central Family Court order of 8 August 2019 and ordered a retrial.
• Central Family Court: His Honour Judge Tolson QC made the appealed order following the fact-finding hearing.