I recently represented a client in an appeal which was heavily reported in the media. (See A and D v B and C and E  EWHC 3089 (Fam))
The Court case concerned two family law appeals, each involving allegations of domestic abuse, rape and sexual assault, by one parent against the other. Together with leading counsel, I represented the father in the second appeal case. At the initial fact-finding hearing, the judge did not find that the father raped or attempted to strangle the mother. The mother appealed the judge’s findings and the two appeals were listed together as they both centred on whether the definition of rape, sexual assault and consent used in criminal law cases should be applied in family law proceedings.
To put the appeal case into context, the father I represented had applied for a child arrangement order seeking a shared parenting arrangement for the couple’s child. As the mother had made serious domestic violence allegations against the father, the family judge decided to hold a fact-finding hearing to determine the mother’s allegations, before a second Court hearing was scheduled to decide whether shared parenting was in the child’s best interests.
Whilst the judge made several domestic abuse findings against the father, such as economic control, the judge did not make a finding that the father had sexually assaulted and strangled the mother. In the mother’s appeal, the Appeal Court judge was asked to consider several issues, such as whether the family Court should apply a consistent definition of rape, sexual assault and consent and if the legal definitions of rape, sexual assault and consent used in the criminal justice system should be used by judges in the family Court.
‘Findings’ are a bit of a mystery to a parent when they first apply or respond to a child arrangement order application. If a parent has been convicted of a criminal offence, a family judge will not look behind that conviction and will base their family law decision on the criminal conviction, after considering the welfare checklist focusing on an assessment of the best interests of a child.
In the majority of family law proceedings, there is no criminal proceedings or conviction and, in their absence, the family judge has to determine if domestic violence, such as sexual assault, took place and make a finding on it. The extent of the findings will influence the outcome of the second welfare hearing, where the judge has to make a child arrangement order after an assessment of the child’s best interests, based on the factual matrix of the findings made at the fact-finding hearing.
In this case, the mother appealed as she feared that without a finding of rape or attempted strangulation the Court would conclude at the welfare hearing that contact between father and child was in the child’s best interests.
The case made it into the Daily Mail news reports because the trial judge referred to the mother’s intelligence in their decision on findings. The judge gave importance to the fact that an intelligent lady could not roughly date when the alleged rape had taken place. The case concerned complex legal arguments between definitions in the criminal and family Courts and human rights arguments, however, in the media much of the case was condensed down into headline news on the relevance of a women’s intelligence in allegations of sexual assault and rape.
After careful analysis and after offering guidance on the approach to be taken when assessing rape and assault allegations in fact-finding hearings, the Appeal Court allowed the mother’s appeal in part. The appeal judge said the Court should not interfere with the original judge’s finding that the mother was not raped by the father as the trial judge had the benefit of hearing from both parents and was best placed to assess the credibility of their evidence and determine the factual issues. However, the Appeal Court concluded that the original judge had not stood back from their individual findings to assess whether all their findings amounted to a pattern of abusive behaviour by the father, that could in turn have profound implications for what child arrangement order is made and future contact between father and child.
When looking back over the appeal and the media reporting only one aspect of the case, I am more convinced than ever of the importance of an early conference with parents where serious allegations of domestic abuse are made, so parents understand how allegations of any nature can become part of the ‘big picture’ when a Court considers if future contact is in a child’s best interests.