It is sadly not uncommon for family practitioners to encounter cases where there are allegations of rape and sexual misconduct perpetrated by one party during the course of a relationship. In the context of private law proceedings, the Court is often called upon to consider these allegations and their impact in relation to child arrangements.
The matter of A v. B & C came to the Court of appeal, following an appeal to the High Court, heard by Mrs Justice Knowles (A & Anor v B & Ors  EWHC 3089 (Fam)), the lead Judge on domestic abuse. The first instance judge had dismissed the allegations made by the mother, including allegations of rape, sexual assault, emotional and physical abuse and controlling and coercive behaviour. A subsequent appeal was dismissed, and a further appeal mounted in the Court of Appeal. Handing down judgment on 5th April 2023, the President of the Family Division, Lady Justice Macur, and Lord Justice Peter Jackson dismissed the appeal, with Sir Andrew McFarlane providing further clarity on the following issues:
The use of strict definitions of ‘rape’, ‘consent’, and ‘sexual assault’
The President concluded that Knowles J was “entirely correct in rejecting the assertion that the Family Court should import definitions of rape, sexual assault and consent (whether drawn from criminal law or elsewhere)” (§23). Mrs Justice Knowles had been invited to consider whether the Family Court should adopt and apply its own definitions of these terms, either using the statutory definitions applied in the criminal courts as a starting point or indeed developing its own definitions.
This approach was rejected in the High Court and now in the Court of Appeal, instead confirming to practitioners that the narrative account of what the Court has determined is key. The Court commended the approach taken by Hickinbottom LJ at paragraph 67 of his judgment in Re R (Children) (Care Proceedings: Fact-Finding Hearing)  EWCA Civ 198: “what matters in a fact-finding hearing are the findings of fact”.
Practitioners should take care not to become “bogged down” by seeking to categorise such behaviour when pleading these allegations; what matters is the Court’s determination of how the party or parties behaved, not whether a strict definition is met.
Adducing evidence of past sexual history
Knowles J was clear in her judgment to differentiate between adducing evidence of the complainant’s sexual history in the context of their relationship with the other party and history in the context of relationships with third parties. It was determined that a separate application to adduce evidence of the sexual history within the context of the parties’ relationship was not required (unless the party sought to include evidence of intimate images).
The Court of Appeal confirmed that this was the right approach, albeit sufficient information should be given to enable the other party to seek to disapply the default position. With regards to sexual history with a third party, the Court of Appeal agreed with the approach taken in the High Court; in those circumstances an application would be required, containing sufficient information to “explain why the evidence of previous sexual behaviour with a third party does point to a propensity to commit that which is alleged to have occurred in the family relationship under consideration” [paragraph 27]. Issues relating to past sexual history should be identified as soon as practicable and be appropriately case managed. The President observed at paragraph 62 of his judgment:
“This judgment, which explicitly endorses Knowles J’s approach in such cases, highlights the importance of what should be a closely managed and comprehensive Case Management Hearing. If the court finds it is relevant to determine allegations of sexual misconduct the supervision of evidence, both as to substance, nature and quantity should be sharply focused and not adjourned unless for good reason. Regardless that one party seeks to rely upon a shared sexual history the court will not be assisted by prurient detail. Neither party should be ambushed in the presentation or defence of their case and the prospect of satellite litigation should be determinedly curtailed.”
Relevance of allegations
The first instance judge had considered an allegation of rape in 2013. Although not an issue relevant to the appeal, the Court of Appeal found that the parties could not find a determination at first instance that such an allegation was relevant to the welfare decisions the Court was required to make.
The President therefore took the opportunity to clarify the Judgment in Re HN (Children) (Domestic Abuse: Finding of Fact Hearings)  2 FLR 1116 (CA) which refers to the Court determining serious issues such as rape [paragraph 59], stating: “it was not the intention of the court to indicate that every allegation of ‘rape’ must be heard and determined” [paragraph 61]. Whilst allegations of this nature are undoubtedly serious, they must be considered in the context of whether determination would yield relevant information to the Court’s determination of child arrangements. It is essential that practitioners turn their minds to this when completing their C1a and narrative statements detailing the nature of the parties’ relationship.
This case provides helpful guidance for practitioners in terms of how to approach private law cases where there are allegations of rape and/ or sexual misconduct. Whilst this must be addressed sensitively and carefully with those who make such allegations, this judgment reaffirms that in cases where rape and/or sexual misconduct is raised in the context of child arrangements applications, careful pleading, robust case management and relevance continue to be the watchwords.
This article is not intended to constitute and should not be used as a substitute for legal advice on any specific matter. No liability for the accuracy of the content of this article, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact the Rachel’s clerk, Ian Charlton, email@example.com
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27th April 2023