“But it is also because there is plainly and properly a limit to what a constitution of the Court of Appeal, determining four individual appeals, can, and as a matter of law should, say about issues which do not strictly arise in any of those appeals.”
“I believe, however, that one can find in the authorities some aids to navigation across an uncertainly charted sea. (1) If the solution is doubtful, the judges should beware of imposing their own remedy. (2) Caution should prevail if Parliament has rejected opportunities of clearing up a known difficulty or has legislated, while leaving the difficulty untouched. (3) Disputed matters of social policy are less suitable areas for judicial intervention than purely legal problems. (4) Fundamental legal doctrine should not be lightly set aside. (5) Judges should not make a change unless they can achieve finality and certainty.”
“As the judge acknowledged, LASPO provides a comprehensive code for the funding of litigants whose case is within the scope of the scheme. It is a detailed scheme. I do not consider that it is possible to interpret either s. 1 of the 2003 Act or s. 31(G)(6) of the 1984 Act as giving the court the power to require the Lord Chancellor to provide funding for legal representation in circumstances where such funding is not available under a scheme as detailed and comprehensive as that which has been set up under LASPO. The court must respect the boundaries drawn by Parliament for public funding of legal representation. In my view, the interpretation adopted by the judge is impermissible: it amounts to judicial legislation.”
“These are not matters that the judge needed to address in order to decide the case before him fairly and justly. Moreover, he embarked on the whole exercise in a case where, because the father and the mother appeared in person, he did not have - and this, I emphasise, is no reflection at all upon Ms Clifford or, for that matter, Mr Graham, who seems to have been well informed on the point - the benefit of sustained, professional and adversarial argument. However, this was not, with great respect to the judge, an exercise appropriately undertaken by a Circuit Judge.”
“By way of summary, the following points are, in my judgement, clear: (1) The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court (para [62] above). (2) The primary purpose of the family process is to determine what has gone on in the past, so that those findings may inform the ultimate welfare evaluation as to the child’s future with the court’s eyes opened to such risks as the factual determination may have established (para [62] above). (3) Criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor function within a process of fact-finding in the Family Court (para [65] above). (4) As a matter of principle, it is fundamentally wrong for the Family Court to be drawn into an analysis of factual evidence in proceedings based upon criminal law principles and concepts (para [67] above).”
“The Family Court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict definition of “rape”, “murder”, “manslaughter” or other serious crimes.”
“The distinction between a court having an understanding of likely behaviour in certain highly abusive settings and the tightly structured requirements of the criminal law will not, of course, be clear-cut. That is particularly so when the judge in the Family Court must conduct their own analysis of issues such as consent, and must do so in the context of a fair hearing. In this regard, the procedural manner in which the hearing is conducted and, in particular, the scope of cross examination of an alleged victim as to their sexual history, past relationships or medical history, justify consideration separately from the general prohibition in determining the substantive allegation. Nothing that is said in Re R, or endorsed in this judgement, should inhibit further consideration of such procedural matters. They are beyond the scope of this judgement and are more properly to be considered elsewhere.”
“While a trial in the Family Court cannot, and must not, set out to replicate a trial or to apply, or seek to apply, criminal law or statute 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 when it comes to deciding whether incidents involving sexual intercourse, whether vaginally penetrative or not, and other sexual acts including oral penetration, penetration by an object or another form were non-consensual.”
“The focus and purpose of a fact-finding investigation in the context of a case concerning the future welfare of children in the Family Court are wholly different to those applicable to the prosecution by the State of an individual before a Criminal Court. The latter is concerned with the culpability and, if guilty, punishment for a specific criminal offence, whereas the former involves the determination of facts, across a wide canvas, relating to past events in order to evaluate which of a range of options for the future care of a child best meets the requirements of his or her welfare… … In family proceedings, the outcome of a fact-finding hearing will normally be a narrative account of what the court has determined on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the family process is to determine, as best that may be done, what has gone on in the past, so that that knowledge the ultimate welfare evaluation where the court will choose which option is best for a child with the court’s eyes open to such risks as the factual determination may have established”
“In this case, however, by failing to step back and take into account the whole of the evidence before him, the judge placed unjustifiable weight on the issue of whether the mother had had a conversation with the father about her unhappiness at his initiating sex when she was asleep. He elevated that issue into the determinative one, saying that if it were proved, the allegations would themselves be made out. The judge failed to bring the various points of challenge made by the father into his evaluation. Those failures meant that there cannot be said to have been a fair consideration of these important allegations from the father’s perspective. At no stage did the judge step back and consider the mother’s credibility in the round, bringing into account his findings that the mother had put forward false allegations of reporting to Dr C, of financial control, and (also) of isolation from her family when in fact the family had lived with her parents between 2004 and 2012.”
“… The issue of domestic violence, which can take various forms - ranging from physical assault to sexual, economic, emotional or verbal abuse - transcends the circumstances of an individual case. It is a general problem which affects, to a varying degree, all member States and which does not always surface since it often takes place within personal relationships or closed circuits and affects different family members, although women make up an overwhelming majority of victims… … The particular vulnerability of the victims of domestic violence and the need for active State involvement in their protection have been emphasised in a number of international instruments and the Court’s case law…”
“What does that approach require? First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include “train of inquiry” points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined. We determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or such other order. Again, the limitation or restriction must satisfy the test of strict necessity.”
“(67) Following the judgment of Russell J and at the request of the President, the Judicial College devised a freestanding sexual assault awareness training programme for Family judges. The programme draws heavily on the successful “serious sexual assault” programme for criminal judges. Since July 2020, it has been a mandatory requirement for all judges who hear any category of Family cases to undertake this programme. The programme, which is under constant review, includes elements in respect of psychological reactions to sexual assault and trauma, and has the benefit of contributions having been made by a number of victims of sexual assault discussing the impact that an attack has had upon them. In addition to the more general training in relation to domestic abuse, which is already in place for Magistrates, bespoke training suitable for the work they undertake in respect of sexual assault and trauma is in the process of being developed. (68) This bespoke Family training these in turn into, and is further developed within, the extensive training programmes that are run in relation to domestic abuse by the Judicial College for the fee paid and salaried judges. These courses have been in place for some years and play a key role in both induction courses for newly appointed Family judges and continuation courses run for Family judges who are already in post.”
“Like any judgement, the judgement of the Deputy Judge has to be read as a whole, and having regard to its content and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and provide sufficient detail and analysis to enable to decide whether or not the judgement is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP[2014] EWHC 3964 (Fam) ,[2016] 1 FLR 229 , para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist”
“66) Furthermore the resumption of a sexual relationship with [B] in 2017 is not consistent with [A] having been raped twice previously by [B], neither the communications sent by text message by [A] to [B] at that time, including repeatedly and heavily sexualised photographs, language and images. It is not probable in my judgment that she would have resumed such a highly charged sexual relationship with [B] if he had raped her as [A] suggests. Furthermore, this allegation is also in my judgment inconsistent with the allegation that [A] permitted [B] to have unsupervised contact with [C] in 2017 and her daughter who was said to have witnessed the rape as a very young child and to have been upset by it at the time. 67) [A] argued that the resumption of her relationship in 2017 with [B] was non-consensual and that it was driven by the need for help and support with family matters, however this is hard to reconcile with the evidence I have seen in the text messages to which I have referred. Significantly, in my judgment, those messages and exchanges are consistent with a consensual relationship, there is no sense of unwillingness that can be derived from them on the part of [A], or any sense that she is in a position where she had to placate an abusive partner. Looking at the broad canvas of matters, therefore, and the fact that [A] did not volunteer anything about the resumption of her relationship with [B] in 2017 until the text messages referred to were put in evidence by [B], I am unable to accept [A’s] account is accurate. If [A] had truly felt she had no choice but to engage in a relationship with [B] in 2017 she could and should have been upfront about that in the context of her allegations that this was a coercive and abusive relationship. In fact, the suggestion that [A] felt that she had no choice but to engage in a relationship with [B] because she needed support only came after [B] had put the resumption of their relationship in 2017 into evidence. For all the reasons set out above therefore, and on the basis of the evidence I have seen and heard, I prefer the evidence of [B] on this allegation and I do not find [A] has proved this allegation.”
“The Applicant sexually assaulted the Respondent by removing a condom in the course of sexual intercourse without the Respondent’s knowledge or consent”
“The purpose of this Practice Direction is to set out what the Family Court or the High Court is required to do in any case in which it is alleged or admitted, or there is other reason to believe, but the child or a party has experienced domestic abuse perpetrated by another party or that there is a risk of such abuse.”
“It is plain that the relationship between [A] and [B] has been a tumultuous one, and [B] plainly was having a relationship with at least one other woman in the background. [B’s] case is that the only sexually intimate relationship he had at the time was with [A]. I cannot find on the evidence that [A] was being coerced or manipulated into continuing a relationship with [B]. Taking a holistic view of the evidence, it seems to me much more likely that [A] was a willing participant in her relationship with [B] in 2014, as [B’s] evidence confirmed.”
“Outside of the specific allegations and looking at the parties’ relationship as a whole, what emerges in my judgment is that the mother with a complex background borne of the trauma of her own childhood coming from a somewhat sheltered background who was maturing in the more secular world found herself with a man who believed that he had to run things his way and who lacked insight and behaved in ways that were at times unacceptable as I have said in my findings. I do not find the father to be malevolent though.”