A v B & Anor.

Family Court fact-finding in private law children proceedings is concerned with establishing, on the balance of probabilities, what happened and how that informs child welfare. It should not import criminal definitions of rape, sexual assault or consent, or create bespoke definitions. The court should examine relevant behaviour and relationship dynamics, including coercive or controlling patterns, on a broad but welfare-focused canvas. Third-party sexual-history evidence requires an advance permission application; evidence of the parties’ own sexual history ordinarily does not, although notice and an opportunity to object are required. Rape-myth awareness is principally a matter for training rather than a rigid judicial direction. Fact-finding, including on rape allegations, is required only where necessary and proportionate to the welfare issues.

Two private law children appeals were heard together by Mrs Justice Knowles. The present second appeal arose from Recorder Temple’s fact-finding judgment of 19 May 2022, which dismissed the mother’s allegations, including two allegations of rape and wider coercive and controlling behaviour.

Knowles J gave judgment on 2 December 2022 in [2022] EWHC 3089 (Fam). She rejected challenges concerning Family Court definitions, alleged breaches of Articles 6, 8 and 14 of the European Convention on Human Rights, sexual history, rape myths, and the recorder’s evaluation of the evidence. Permission for a second appeal was granted. The central issues were whether the recorder’s reference to section 1(1) of the Sexual Offences Act 2003 rendered her findings unsafe, whether omissions from her judgment were fatal, and whether too much weight was placed on resumed sexual relations in 2017.

The Court of Appeal unanimously dismissed the appeal on all grounds and endorsed the conclusions of Knowles J.

1. Definitions and fact-finding. The Family Court should not import criminal definitions of rape, sexual assault or consent, or construct bespoke free-standing definitions. Parliament’s consideration of domestic abuse in the Domestic Abuse Act 2021 made unilateral judicial creation of new legal requirements especially inappropriate. The court should determine relevant behaviour and relationship dynamics, including coercive or controlling behaviour, on a broad but welfare-focused canvas. Conduct falling short of criminal rape may nevertheless be profoundly abusive. This approach was consistent with Re R [2018] EWCA Civ 198, Re H-N [2021] 2 FLR 1116 (CA) and K v K [2022] EWCA Civ 468.
2. Convention rights. The absence of consistent Family Court definitions did not establish a breach of Articles 6, 8 or 14 of the European Convention on Human Rights. Different decisions by different judges on different facts and evidence did not amount to an impermissible conflict of approach.
3. Sexual history. Evidence of sexual history with a third party should be introduced only following an advance written application supported by evidence establishing relevance and necessity to the specific issues. The court should adjudicate the application, preferably at a case-management hearing. Evidence of sexual history between the parties ordinarily required no specific application, but notice and sufficient particulars should be given so that the other party may object or seek to disapply the default. Intimate images required an application in accordance with Re M [2022] EWHC 986 (Fam).
4. Rape myths. Judicial awareness was principally a matter for training and available resources. A definitive list or standard self-direction was undesirable because it could become incomplete or rigid and undermine judicial flexibility.
5. Recorder’s errors. The recorder was wrong to set out the criminal definition of rape under section 1(1) of the Sexual Offences Act 2003, and failed expressly to refer to the applicable Family law and practice. The appellate question was nevertheless one of substance. The criminal definition was not used in the subsequent evaluation. The first allegation was rejected on the factual finding that the appellant consented to the condom’s removal, and the second was found not proved. The findings were therefore not unsafe. Likewise, omission of express references to PD12J, coercive and controlling behaviour or Re H-N was not fatal where the judgment as a whole showed a holistic assessment of the allegations and evidence.
6. Later sexual relations. Consent on one occasion did not preclude non-consensual sexual activity on another. The 2017 relationship and contemporaneous communications could be considered as part of the relationship as a whole and in assessing the evidence, but they could not alone determine whether earlier rape had occurred. The recorder had a substantial evaluative margin, and her use of the phrase not consistent was inapt but did not invalidate the reasoning.
7. Additional guidance. A fact-finding hearing should be held only where necessary and proportionate to the child-welfare issues. The court should identify the welfare issues, understand the allegations, assess their relevance, consider the purpose of fact-finding and other evidence, and ask what would follow if the allegations were proved. An allegation labelled rape did not automatically require determination. Where a necessary hearing concerned an alleged pattern of coercive or controlling behaviour, that pattern should ordinarily be the primary issue, with specific allegations selected for their probative relevance. Lord Justice Peter Jackson added that agreed legal summaries should be concise and case-focused rather than indiscriminate boilerplate.

• Court of Appeal (Civil Division): The second appeal was dismissed on all grounds on 7 March 2023.
• High Court (Family Division): Mrs Justice Knowles heard two appeals together and gave judgment on 2 December 2022 in [2022] EWHC 3089 (Fam). Permission for a second appeal was granted in the present case.
• First-instance fact-finding hearing: Recorder Temple dismissed the mother’s factual allegations at the conclusion of a fact-finding hearing on 19 May 2022.