A v B (Appeal: Domestic Abuse)

On an appeal from domestic-abuse fact-finding proceedings, an appellate court must read the judgment as a whole and should interfere with factual findings only where the decision was wrong, plainly wrong, or rationally unsupportable. Allegations of sexual abuse must be assessed within the wider relationship and any alleged pattern of coercive or controlling behaviour. Generalisations that prolonged silent submission is inherently improbable, or that an educated victim would have recognised abuse and complained, are unsafe and may reflect rape myths. Nevertheless, those matters may be relevant where they arise from the evidence about the particular complainant, provided the civil standard of proof is applied and the court avoids assumptions based on culture, religion or gender.

The mother appealed against findings made by a Recorder in private-law proceedings under the Children Act concerning the welfare of the parties’ son. After a three-day fact-finding hearing, the Recorder rejected allegations of sexual, physical, psychological and emotional abuse, and controlling or coercive behaviour.

Permission to appeal was granted on grounds concerning the assessment of alleged marital sexual abuse. Permission on other grounds had been refused. The mother argued that the Recorder had relied on rape myths and had failed to assess the alleged sexual conduct within the wider context of the relationship. The central issues were whether the Recorder’s reasoning was legally or factually impermissible and whether the findings were open on the evidence.

1. Appeal dismissed. Permission to appeal on ground 7, concerning vulnerability and isolation, was refused. The appeal on grounds 1 and 3 was dismissed.
2. Under FPR 30.12(3), an appeal may succeed where the decision was wrong or unjust because of serious procedural or other irregularity. An appellate court may interfere where there is an error of law, a conclusion not open on the evidence, material failure to give proper weight, or a decision outside the generous ambit of reasonable disagreement: G v G (Minors: Custody Appeal) [1985] FLR 894.
3. The appellate court must read the judgment as a whole. It must resist narrow textual analysis and should assume that the trial judge knew how to perform the judicial task unless the contrary is demonstrated: Re F (Children) [2016] EWCA Civ 546; Piglowska v Piglowski [1999] 1 WLR 1360. Findings of fact and evaluative conclusions should not be disturbed unless plainly wrong or rationally insupportable: Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5; Volpi and ors v Volpi [2022] EWCA Civ 464.
4. Domestic-abuse allegations should be assessed holistically, including whether there is a pattern of coercive or controlling behaviour. Conduct may be abusive even if it does not establish rape, and the distinction between consent and submission may be less significant in family proceedings than in a criminal trial: Re H-N and Others (Domestic Abuse: Finding of Fact hearings) [2021] EWCA Civ 448.
5. The Recorder’s statement that prolonged silent submission was inherently improbable was inappropriate. The alleged conduct had to be assessed in its personal, cultural and religious context. Similarly, it would have been wrong to treat education or profession as making rape or sexual abuse unlikely. However, read as a whole, the Recorder’s reasoning showed that he assessed the evidence about this particular complainant, rather than relying on a general assumption. He was entitled to find that, on the evidence, she would have known that the alleged conduct was abusive and would have spoken to someone, and to take account of periods when the father respected her wishes about intercourse.
6. The Recorder was entitled to reject the allegations after considering the whole evidence, including credibility, alleged patterns of abuse, the absence of corroboration, the parties’ sexual abstinence, religious practices, communications, and allegations of physical abuse of the child which he found unreliable. The judgment contained no error that undermined or contaminated the conclusions.

• High Court (Family Division): appeal from fact-finding determinations made by Recorder Roscoe in the Central Family Court after a three-day hearing, with judgment handed down on 27 September 2022. Permission to appeal was granted on grounds 1 and 3, refused on other grounds, and refused at this hearing on ground 7. Appeal dismissed.