A & Anor v B & Ors

A & Anor v B & Ors

The family court should not apply criminal law definitions of rape, sexual assault, or consent in fact-finding hearings. Its task is to determine, on the balance of probabilities, the behaviour of the parties relevant to the welfare of the child, using a holistic approach and considering only those facts necessary for risk assessment. The absence of consistent criminal law definitions does not breach Articles 6, 8, or 14 ECHR. Admissibility of sexual history evidence is governed by relevance and proportionality, not by presumption. Judges should be aware of rape myths but are not required to give themselves formal warnings; training and guidance are available through the Judicial College...

Parties
Applicant: A; Applicant: D; Respondent: B; Respondent: C; Respondent: E; Intervener: Centre for Women’s Justice
Jurisdiction
England and Wales
Judgment Date
02 December 2022
Procedural Posture
Appeal / Judgment on Appeal From Fact Finding Hearings in Private Law Children Proceedings
Outcome
Appeal in ABC dismissed; appeal in DE allowed in part and remitted for further consideration.
Legal Topics
Domestic Abuse, Rape, Sexual Assault, Consent, Fact Finding, Practice Direction 12 J, Coercive and Controlling Behaviour, Article 6 ECHR, Article 8 ECHR, Article 14 ECHR
Family Law Children Law Human Rights Domestic Abuse Rape Sexual Assault Consent Fact Finding +5 more

Case Brief

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Parties

A

Applicant

D

Applicant

B

Respondent

C

Respondent

E

Respondent

Centre for Women’s Justice

Intervener

Procedural Posture

Appeal / Judgment on Appeal From Fact Finding Hearings in Private Law Children Proceedings

Legal Issues

  1. 1 Should the family court apply consistent definitions of rape, sexual assault, and consent?
  2. 2 Does the absence of such definitions breach Articles 6, 8, and 14 ECHR?
  3. 3 Should criminal law definitions be used in family court fact-finding?

Ratio Decidendi

The family court should not apply criminal law definitions of rape, sexual assault, or consent in fact-finding hearings. Its task is to determine, on the balance of probabilities, the behaviour of the parties relevant to the welfare of the child, using a holistic approach and considering only those facts necessary for risk assessment. The absence of consistent criminal law definitions does not breach Articles 6, 8, or 14 ECHR. Admissibility of sexual history evidence is governed by relevance and proportionality, not by presumption. Judges should be aware of rape myths but are not required to give themselves formal warnings; training and guidance are available through the Judicial College...

Court Disposition

Appeal in ABC dismissed; appeal in DE allowed in part and remitted for further consideration.

Orders

  • ABC: Appeal dismissed; findings of the first instance judge stand; matter referred for welfare stage case management.
  • DE: Appeal allowed; matter remitted to Designated Family Judge to determine, by reference to PD12J, whether further fact-finding is necessary; findings on rape and non-fatal strangulation stand, as do positive findings on other allegations.