This is a guest post by Alexandra Wilson, barrister at 5 St Andrews Hill Chambers.
Warning: Please note that quotations from this judgment contain some descriptions of sexual assault and rape.
This case, JH v MF  EWHC 86 (Fam) was an appeal from the Central Family Court following a fact-finding trial before HHJ Robin Tolson QC in proceedings for a child arrangements order. The appellant mother (JH) had alleged domestic abuse, including two allegations of rape. She was represented by a barrister and the respondent father (MF) was unrepresented but supported by a McKenzie friend.
Ms Justice Russell DBE (the appeal judge) ordered a retrial in this case following this appeal.
She concluded her judgment with notification that she had spoken to the President of the Family Division about the urgent need for all family court judges to have training in recognising the nature and effects of domestic abuse
JH met MF in 2013 when she was 17 and MF was 23 and they began a relationship. JH soon moved in with MF and they had a child (C) in January 2015.
Police records showed a number of incidents between the couple. In June 2014, MF was said to have been intoxicated, aggressive and abusive to JH. In September 2014 there was a verbal altercation. In April 2015 MF was said to have hit JH over the head; he was arrested for battery and released on bail. In May 2015 JH contacted the police and retracted her statement. In May 2016 police records show a phone call from JH where she reported fleeing the family home without C who was locked inside with MF. In August 2016 JH reported a history of domestic abuse including sexual assault by penetration; MF was arrested for Controlling and Coercive Domestic Abuse (s76 of the Serious Crime Act 2015) and interviewed under caution about that offence and the sexual assault but was released on bail. JH eventually moved into a refuge with C. MF then reported JH to social services alleging that she could not care for C and reported her as missing to the police. The CPS chose to take no further action in relation to the sexual assault in September 2017 and his bail conditions were removed.
MF applied for a child arrangements order in October 2018, more than two years after JH had left and moved into a refuge. This type of order would have been about residence and contact with C. Safeguarding enquiries took place in August 2019 but checks were not completed because of JH’s distress. Her support worker reported that she had “feelings of severe trauma” but that there were “no concerns about her parenting of [C]”.
In August 2019, a neighbour reported MF to the police about him harassing her, making threats through others and trying to find out where JH was. Police records also indicate that prior to JH and MF meeting, MF’s mother, brother, aunt and previous partners had complained to the police about his violent and abusive behaviour.
The Fact-Finding Hearing on 8 August 2019
Where allegations of abuse are made in family court application but denied by the other side, the court should make findings of fact as to whether they are true or not. This procedure is explained in The Transparency Project guide on family court cases about children where there are allegations of domestic abuse.
All the criticisms listed below about the trial are made by Russell J. and are not comments by the author of this post.
- The trial judge ignored special measures
The first procedural irregularity arose early in the hearing. JH was deemed a vulnerable witness (FPR 2010 r3A.7(a)(i) ) and had applied for screens in the courtroom (FPR 2010 r3A.8 (a)) to help her give her best evidence, which the court is required to enable her to do (FPR 2010 r3A.5). Despite this, the trial judge ordered that JH giving evidence from counsel’s row (the front row of court, where the legal representatives sit) was “better” than using the witness box and a screen. He should have given adequate reasons for not following the Family Procedure Rules yet failed to give any.
The trial judge also ordered MF to give his evidence from counsel’s row, despite MF not making any application to give evidence in the same manner as JH. The judge referred to the “feng shui” of the court room and the screens and claimed it “created some kind of balance”. Counsel’s concerns were dismissed without reasons. MF was able to seek guidance and assistance from his McKenzie friend while giving evidence under oath, which is not only prohibited but also undoubtedly gave him an unfair advantage.
- The trial judge failed to bear definitions in mind
The appeal judge states that the trial judge “failed” to bear any of the following definitions (in Practice Direction 12J) in mind “in any part of his judgment”:
“domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality.
“coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim
“controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
- The judge placed insufficient/ no weight on corroborative evidence and undue weight on irrelevant matters.
The trial judge directed police disclosure which included an independent witness statement (from the neighbour) and police records that supported JH’s account. However, the judge found that there was no independent evidence. He failed to address why he disregarded it, or if he did regard it why he found that it was not independent (other than to dismiss the friend and neighbour’s evidence because they were JH’s “friends”)
- The judge gave insufficient reasons for not finding the allegations proved, particularly in relation to controlling and coercive behaviour.
The trial judge’s conclusion is based on the assumption that the use of language cannot form the basis of a controlling relationship, contrary to the definition (see above). The judge also dismissed violent behaviour (throwing objects) as part of controlling or coercive behaviour without explaining why.
- The judge placed undue weight on the demeanour of the parties in Court when assessing their evidence
The trial judge stated that MF had the “better of the argument” and described MF as “the more convincing witness, giving his evidence in a straight-forward, forthright manner…” He failed to give reasons for preferring MF’s evidence, despite being required to. (See McFarlane LJ in V (A Child) (Inadequate Reasons for Findings of Fact) (2015) EWCA Civ 274.)
The judge also made a finding about JHs psychological state of mind without any forensic expert when he stated “she [JH] gives a description of a woman who is of a highly anxious, it might be said, neurotic, disposition”. The appeal judge notes that at no point did he consider that her anxiousness might be because of previous abuse.
The appeal judge notes that it would be “unsurprising” if JH was anxious given the judge failed to comply with the special measures and made JH give evidence from counsel’s row. Compounding this, the trial judge used the fact that he could not properly hear JH, and her voice was not picked up on tape, to question her evidence.
- The judge failed to take into consideration that MF had previously, and repeatedly, been involved with the police in domestic violence and harassment incidents.
The trial judge failed to properly assess the police reports about MF’s incidents with JH and also failed to assess reports involving previous partners and female relatives, which should have formed part of the picture of the parties’ relationship. The judge made little use of the police disclosure other than to note ‘inconsistences’ with JH’s evidence. In contrast, the judge dismissed the inconsistencies in MF’s evidence but failed to give reasons as required (see Moylan LJ in Re A (Children)  EWCA Civ 74).
The judge appeared to accept that when MF pinned JH to the wall, the police report showed a more extensive assault, but he made no finding. He then concluded this was “the only allegation of violence” and that JH’s description “goes no further, really, in my view, on analysis, than saying that the relationship had its difficulties…” This shows the judge’s failure to appreciate the other types of domestic abuse.
He noted that it was reassuring that JH’s complaints stopped and claimed that this showed that there was minimal domestic abuse. As the appeal judge states this is “wholly misconstrued”. JH had fled the family home with C and her location was protected.
- The judge was wrong to make findings on matters that were not put to JH
The trial judge found that JH was “guilty of aggressive behaviour herself, on occasions” but JH was never given the opportunity to answer to this.
He also failed to deal with the text messages sent by MF to JH. He concluded that the graphic, sexually explicit and threatening texts were consistent with “sexting” and were not “helpful”. Again, this was never put to JH to answer in her evidence.
The appeal judge comments that the content of these texts was “likely to have been relevant in connection with any consideration of controlling and coercive behaviour” and “may well have had relevance in connection with the complaints of sexual assault.”
- The judge was wrong to find that JH had not been subjected to sexual penetration without consent (raped) by MF
The trial judge accepted that JH had been reluctant to have sex but found that “sexual intercourse began with her consent, and consent was only removed during intercourse when the mother told the father to stop — but he failed to do so.”
“The difficulties do not end there because this is a mother who very often, and for all I know, always, found that she had difficulties in taking physical enjoyment from sex. She would, she tells me, often tell the father to stop during the times when intercourse between them was more frequent than it was in 2016. The difficulties arose, apparently, because of events in her past…”
Despite accepting that JH told MH to stop and that he “carried on at least for “a couple of minutes””, the trial judge stated that “she [JH] took no physical step to encourage the father to desist.”
The trial judge commented:
“My concern about this occasion centres on the idea that the mother did nothing physically to stop the father. In particular, given the position in which intercourse was occurring [on all fours], because the mother was not in any sense pinned down on this occasion, but could easily, physically, have made life harder for the father. She did not do so. I do not find that the father was in any way on this occasion so physically forcing her as to cause her not to be able to take preventative measures, nor, in fact, is that case alleged. Following the event, as I have already said, the mother took no immediate action to report the matter to the police, or indeed to anyone else. Her description, of course, does not indicate that the circumstances were such that she might in any way have been thought wise to seek medical advice.”
Commenting on her being upset afterwards, he said: “If [JH] was upset afterwards, which [MF] recognises, this was nothing unusual because of the difficulties I have mentioned.”
The trial judge expressed a number of concerning views. Firstly, that it is acceptable for penetration to continue when a person is asked to stop. Secondly, that a person must physically resist penetration in order to retract consent. Thirdly, that it is necessary for victims of sexual assault to report the assault (despite it being recognised that many victims do not do so out of fear or embarrassment).
The trial judge accepted that MF requested sex and JH refused on this occasion.
“Here, my difficulty with the mother’s account centres on the removal of her pyjama bottoms. I should emphasise that father’s account is that in fact she was wearing a nightie. 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 the pyjama bottoms. There is no evidence of any kind that a struggle pursued, nor again is a case advanced that the father was being physically coercive on this occasion. Insistent in his requests, yes, but physically coercive, no.”
Again the trial judge concludes that JH should have physically resisted. He also suggests that “physical coerci[on]” is necessary for a lack of consent, which is incorrect.
This time JH had reported the incident to the police but the trial judge felt that there was “significance in the circumstances” in that the friend’s statement implied that JH visited the police to report MF’s threats to the friend. He interpreted it as “incidental” that JH revealed the allegations. He also commented that the friend’s statement that said: “I asked her what had then happened and she told me that she had let the father have sex with her as it was easier than to keep saying no” did not support a coherent account of rape.
The appeal judge notes that “[t]his conclusion is obtuse” and highlights that consent requires that a person has had the freedom and capacity to make the choice (s 74 Sexual Offences Act 2003).
The trial judge concluded that on both occasions “this was not rape” but contradictorily states that “it may have been that at a point during both occasions of intercourse the mother became both upset and averse to the idea of the intercourse continuing”. He dismisses this as something that was “usual for her, the product of events in her past and her psychological state in not being able to take physical pleasure from sex.” He adds that “[i]t was not a consequence of any action on the part of the father” and said “I cannot even, on this evidence, find that the father was somehow insensitive to the mother’s position.”
The trial judge failed to explain why, if it was evident to the judge that JH had become averse to sexual intercourse continuing it was not evident to MF. He also failed to explain why it was acceptable for MF to insist on sexual intercourse knowing that it was distressing and unwelcome to JH. The appeal judge remarks that the “logical conclusion of this judge’s approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate.”
The appeal judge makes clear that the Family Court cannot take an approach “wholly at odds” from that which applies in the Criminal Court in incidents involving sexual intercourse or sexual acts. In criminal law lack of consent does not need to be demonstrated by physical resistance; a person consents if he agrees by choice and has the freedom and capacity to make that choice (s 74 Sexual Offences Act 2003). Guidance in Blackstone’s Criminal Practice 2020 states that “the fact that a complainant who simply freezes with no protest or resistance may nevertheless not be consenting” and that “violence or the threat of violence is not a necessary ingredient” (para B3.28).
What this judgment means
This judgment from Ms Justice Russell has already attracted media comment, on which we will be writing shortly. Although children’s services say that there are no child protection concerns about C or about JF’s parenting, this is a case where their abuse was unnecessarily extended by the system. It is hoped that the appeal judgment will lead to change.
Image by Tumisu from Pixabay with thanks.