A & Anor v B & Ors

In family fact-finding, the court must determine what the parties did and how their relationship operated, rather than whether conduct satisfies criminal definitions of rape, sexual assault or consent. The court must consider the wide canvas of evidence and relevant patterns of coercive or controlling behaviour without imposing a rigid framework. Sexual history with a third party will rarely be relevant and requires advance permission. Sexual history between partners may be probative and is governed by relevance, proportionality, fair-trial and privacy considerations. Judges should guard against rape stereotypes but need not give a standard warning. An unqualified reference to a criminal definition is an error, but does not invalidate sound substantive reasoning. Failure to assess whether non-rape conduct formed part of abusive behaviour requires remittal.

Two appeals arose from private-law children fact-finding hearings involving allegations of domestic abuse, including rape and sexual assault. In ABC, Recorder Temple dismissed all findings sought by the mother against the father. In DE, His Honour Judge Marin dismissed allegations of rape and non-fatal strangulation but made other findings of abusive behaviour.

The appeals raised common questions about criminal concepts in family proceedings, Convention rights, sexual-history evidence, rape stereotypes and appellate review. The central issues were whether the first-instance judges had applied the correct fact-finding approach and whether any errors affected their conclusions or the subsequent welfare assessment.

1. Disposition. The appeal in ABC was dismissed. The appeal in DE was allowed and remitted to the Designated Family Judge to determine, by reference to Practice Direction 12J (Child Arrangements and Contact Orders: Domestic Abuse and Harm), whether any further fact-finding hearing was necessary and, if so, its parameters. The findings that rape and non-fatal strangulation were not established, and the positive findings already made, remained in force.
2. The appellate role under Family Procedure Rules 2010, rule 30.12(3), was limited. The court could clarify practical procedure where necessary, but could not create a substantive framework that Parliament had not enacted. The principles in Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198 and Re H-N and Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448 remained authoritative. Criminal concepts had no role in determining the substantive family-law facts. The task was to establish a narrative of past behaviour relevant to risk and welfare, including conduct falling short of a criminal offence.
3. The court rejected the suggested need for consistent criminal definitions of rape, sexual assault or consent. Different factual outcomes by different judges did not, without a profound and longstanding conflict in last-instance case law, breach Articles 6, 8 or 14. The Istanbul Convention required violence to be taken into account in child-related decisions, but did not require criminal definitions in family proceedings.
4. Sexual-history evidence had to be assessed by relevance, followed where necessary by a balancing exercise concerning competing rights, and by the court’s powers to control how evidence was presented. Sexual history with a third party would rarely be relevant and required advance permission. Sexual history between partners could be logically probative of the relationship and patterns of behaviour, and did not require a specific application unless intimate images were also relied upon.
5. A standard list or self-direction on rape myths was inappropriate. Judicial training and the Equal Treatment Bench Book and CPS guidance could assist judges, who retained flexibility to address relevant stereotypes in the particular case.
6. The reference by the ABC judge to s. 1(1) of the Sexual Offences Act 2003 was troubling and erroneous. It did not, however, infect the substantive reasoning, which had evaluated the evidence in accordance with family-law principles. The absence of express citations to leading authorities or PD12J was likewise not fatal where the judgment, read as a whole, showed appropriate holistic evaluation.
7. In DE, the judge had failed to stand back and assess whether the sexual conduct, although not amounting to rape or strangulation, was abusive and formed part of a wider pattern. That failure materially affected the welfare analysis and required remittal. The judge’s observation that the mother’s intelligence was relevant to her failure to report abuse was unhelpful, although the detailed evidential reasons for the findings meant that it did not require those findings to be set aside.

1. High Court (Family Division): Mrs Justice Knowles heard the two appeals and delivered judgment on [2022] EWHC 3089 (Fam). The ABC appeal was dismissed. The DE appeal was allowed and remitted for further case-management consideration.
2. First instance: Recorder Temple dismissed all findings sought in ABC. His Honour Judge Marin dismissed the allegations of rape and non-fatal strangulation in DE but made other findings. No separate citations for those decisions were stated in the judgment.