30 Jan 2020

Re H v F [2020] EWHC 86 (Fam)

Content Note: domestic abuse and sexual violence

The Family Division of the High Court has handed down judgment on an appeal following a fact-finding trial in Children Act 1989 proceedings. The trial considered the Appellant mother’s complaints of domestic abuse, involving rape and coercive control. The trial was heard at first instance by the Designated Family Judge at the Central Family Court in London, HHJ Robin Tolson QC, and was instigated by the Respondent father’s application for child arrangement orders (“CAO”).

On appeal Ms Justice Russell found ‘serious procedural irregularity and multiple errors of law’ (¶ 58), some of which were based on debunked stereotypes about rape. In particular he employed ‘obsolescent concepts concerning the issues of consent’ (¶ 53). The appeal judgment provides clear authority that such stereotypes have no place in the Family Court and has led to a recommendation for family judges who hear such cases to receive training based on that provided to judges in the criminal courts. The judgment also provides further case law on the relationship between family law and criminal law.

Background and history

The Appellant mother and Respondent father met and commenced a relationship in 2013. The parties first came to the attention of the police in June 2014 and the child who was the subject of proceedings was born on 2 January 2015 (“C”).

The Appellant alleged that the relationship was marked by domestic abuse involving physical violence and coercive control. She further alleged two occasions where the Respondent had sexual intercourse with her, without her consent in May 2016 and July 2016. In late August 2016 the Appellant reported this to the police. She was categorised as a high-risk victim. After the Respondent was arrested and released on bail the Appellant moved into a refuge with C.

The Respondent was further arrested for controlling and coercive behaviour contrary to s 76 of the Serious Crime Act 2015 and interviewed under caution about that offence and the assault by penetration. On 27 September 2017 the CPS decided not to take further action over the assault by penetration; the reasons for this decision are unknown. This history has been obtained from the police records and disclosure made available to the Family Court.

The Respondent applied for a CAO on 15 October 2018. The fact-finding hearing commenced on 8 August 2019.

The appeal judgment is unambiguous about the failings of the trial judge. In particular, ‘the judge’s conduct of the hearing was fundamentally flawed’ (¶ 2) and ‘the real risk of the appearance of a partisan approach in the judge’s conduct is self-evident’ (¶ 22). It is clear that the judge thought physical resistance was a requirement of rape and displayed a misunderstanding, or misapplication, of the concept of consent.

The Judgment

The fact-finding hearing considered two allegations of rape. In relation to the first of these, the trial judge’s ‘concern…centre[ed] on the idea that the mother did nothing physically to stop the father’. He highlighted that ‘her description…does not indicate that the circumstances were such that she might in any way have been thought wise to seek medical advice’ (¶ 36). Over half of reported rapes do not result in physical injury[1].

On this first allegation, the appeal judge held the following:

‘This judgment is flawed. This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent…the judge should have been fully aware that the issue of consent is one which has developed jurisprudentially, particularly within the criminal jurisdiction, over the past 15 years.’ (¶ 37)

The trial judge made further comments in relation to the second allegation, where he noted ‘I do not see why the mother could not, should not, have made life difficult for the father in the circumstances in which she found herself by preventing the removal of her pyjama bottoms’ (¶ 39). In considering this, the appeal judge reiterated that ‘physical coercion or violence or the threat of violence is not considered a necessary element when considering consent or the lack of consent, thus the judge was wrong in his approach’ (¶ 40).

Also relevant are the trial judge’s conclusions on text messages sent to the Appellant by the Respondent during the hearing. These messages were ‘graphic, sexually explicit and threatening’ (¶ 31) and included a threat of anal rape if the Appellant did not “shut up”. The texts were not considered by the trial judge as either threats of rape, capable of constituting witness intimidation, or relevant to the serious sexual assault and coercive control alleged by the Appellant. The trial judge found that these texts ‘were consistent with “sexting” and were not “helpful”’ (¶ 31). This point illustrates that the judge’s disregard of the criminal understanding of consent and the offence of rape does not exist in a vacuum and must be analysed against a wider backdrop.

“There is no principle that lack of consent must be demonstrated by physical resistance” (¶54)

Rape generates stereotypes and assumptions which have been repeatedly disproven and discredited. The existence of such stereotypes has been recognised in the criminal arena in recent years by the Court of Appeal[2], CPS[3] and Judicial College[4]. Subsequent attempts have been made to mitigate their influence in the criminal court. Judicial directions, guided by the Crown Court Compendium, are one such method.

One stereotype is that rape must involve physical resistance on the part of the complainant. Such myths are multi-layered and interrelated. For example, this belief is intertwined with the belief that rape must involve serious physical injury. The criminal offence of rape does not require physical resistance or perpetration of physical violence. The CPS Policy for Prosecuting Rape states that the belief ‘if they did not scream, fight or get injured, it was not rape,’ is a myth. Instead the question of consent is of prime importance. The Crown Court Compendium suggests that juries may need guidance relating to ‘lack of any use or threat of force, physical struggle and/or signs of injury[5]’.

“The criminal jurisdiction…should inform the approach in the Family Court” (¶50)

The family and criminal courts are distinct from each other. They differ in objectives and outcomes, principles and procedure. However, according to the judge considering the appeal ‘family judges should not approach the issue of consent in respect of serious sexual assault in a manner so wholly at odds with that taken in the criminal jurisdiction’ (¶ 47). Whilst the appeal judgment notes that it is ‘fundamentally wrong’ to analyse cases in the Family Court ‘through the prism of criminal principles and concepts’ (¶ 46), this case provides clear authority that ‘it cannot be lawful or jurisprudentially apposite for the Family Court to apply wholly different concepts or to take an approach wholly at odds from that which applies in the criminal jurisdiction (¶ 47) in cases involving allegations of sexual assault and rape. Further, this case recognises the existence of such stereotypes and the need to remove them from the consideration of the tribunal in the context of family law.

At present, judges in the criminal courts who are likely to hear such cases must undergo training on the appropriate approach to take when considering allegations of serious sexual assault and issues of consent. This case has led to a formal request from The President of the Family Division to the judicial college for judges in the family courts to be provided similar training. This is a welcome development for victims of serious sexual assault, albeit a late one. It is hoped that a cross-jurisdictional approach will ‘foster a more coherent approach’ (¶ 59).

Separately, this case has bolstered challenges in the media to the privacy of the family courts. Campaigners argue that their closed nature has provided a veil for such views to exist with impunity[6]. This recent judgment provides concrete authority that stereotypes surrounding rape are not relevant in the family courts and reiterates the principle that ‘there should be a congruence of approach in both the family and criminal jurisdictions’ (¶ 46).

However, the Designated Family Judge in the Central Family Court has espoused numerous rape myths in this judgment. Further to those detailed above, he also employed stereotypes about witness demeanour and the speed of reporting allegations to the police. It is of great concern that subscription to these myths is not only apparent but prevalent enough for such beliefs to be primary influences on a fact-finding judgment. It also raises the question of whether judicial training will be sufficient to remedy the embedded beliefs which lead to such judgments. The recommendation of Ms Justice Russell is certainly progressive and necessary to align family judges with criminal judges. However, the judicial system must continue to consider all avenues for challenging institutionalised sexism, based on education initiatives aimed at both the system and its users. This must be contextualised against the development of public awareness programmes as a long-term solution to bring about cultural change and combat stereotypes and myths on a societal level.

[1] Office for National Statistics (ONS), ‘Violent Crime and Sexual Offences – Intimate Personal Violence and Serious Sexual Assault’ (ONS, 12 February 2015)
[2] Miller [2010] EWCA Crim 1578 [23]
[3] CPS, ‘CPS Policy for Prosecuting Cases of Rape’ (CPS 2012) <https://www.cps.gov.uk/publication/cps-policy-prosecuting-cases-rape>
[4] HHJ Martin Picton and others (eds), ‘The Crown Court Compendium, Part 1: Jury and Trial Management and Summing Up’ (Judicial College December 2019) <https://www.judiciary.uk/wp-content/uploads/2016/06/crown-court-compendium-pt1-jury-and-trial-management-and-summing-up-june-2018a.pdf> [20-1]
[5] n4 [20-3]
[6] Louise Tickle, ‘In our secret family courts, judges still don’t understand what rape means’ The Guardian (London, 5 January 2020) < https://www.theguardian.com/commentisfree/2020/jan/05/secret-family-courts-judges-rape-evidence-sexual-assault>

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