A & Anor v B & Ors [2022] EWHC 3089 (Fam)


Anthony Metzer KC and Dr Charlotte Proudman represented two appellant mothers in an appeal concerning allegations of rape, domestic abuse and coercive and controlling behaviour. The court addressed the following propositions in the Judgment:

A) Whether the family court should apply a consistent definition of (i) rape, (ii) sexual assault or (iii) consent, making clear the difference between consent and submission;

B) Whether the failure to have a consistent approach to these issues was in breach of the Article 6, 8 and 14 rights of the Appellant mothers;

C) Whether the definitions of rape, sexual assault and consent used in the criminal justice system should be either a starting or finishing point for judges in the family court;

D) What the approach of the family court should be to a complainant’s sexual history when determining allegations of rape or sexual assault; and

E) Whether, when determining allegations of rape and/or sexual assault, judges in the family court should give themselves a warning about rape myths. Generally, such myths concern themselves with the behaviour or experiences of a complainant.

The Judgment made clear that the criminal law definitions of rape and consent do not apply in family proceedings, as submitted on behalf of all of the parties. The court set out helpful guidance from other platforms in respect of rape myths that Judges and professional mights draw upon. The court also addressed the correct approach to relying on sexual history in sexual abuse cases.

The appeal in A, B and C was refused. Whilst the trial Judge applied the criminal law definition of rape and consent, the appellate court found it did not impact on the substance of the decision. 

The appeal in D, E was allowed. The Judge said, Dr Proudman’s submission, that the judge had failed to stand back and consider the significance of the findings he had made about the parties’ sexual relationship and set these against the other findings he made about the father’s behaviour, had real traction” [§124]. A failure to evaluate whether there was a pattern of abusive behaviour has profound implications both for the welfare analysis by Cafcass and the court’s final welfare decision.

Read more here.

Related barristers: Anthony Metzer KC, Dr Charlotte Proudman

Related practice areas: Family


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