Mr Metzer KC and Dr Proudman represented a complainant of rape in a family law appeal before Mrs Justice Knowles sitting in the High Court. The complainant had appealed against a fact-finding decision in which her allegations of rape, domestic abuse and coercive and controlling behaviour were not proved. The appeal was refused and is reported as, A & Anor v B & Ors [2022] EWHC 3089 (Fam) (02 December 2022). The case concerns whether a Judge’s finding about rape should stand when the criminal law definition of consent and rape is applied in family law proceedings; whether there should be a definition of rape and consent in family law proceedings; and the correct approach to rape myths and a complainant’s sexual history. The complainant of rape appealed for the second time and secured permission to appeal from Lady Justice King sitting in the Court of Appeal on the following grounds:
Ground I: The Learned Judge was wrong to find that the trial Judge’s decision must stand even though it was acknowledged that the trial Judge applied the wrong law in respect of a decision concerning rape and sexual abuse allegations and that the trial Judge totally failed to refer to the applicable law [§83]. It is respectfully submitted that it is an error of law to find that a Judge can apply the wrong law and legal principles and yet the decision remains safe;
Ground II: On the Learned Judge’s finding that PD12J is crucial guidance for family judges dealing with domestic abuse and harm within children proceedings [§90] and the parties’ acceptance that the trial Judge had not referred to the Practice Direction in her Judgement [§ 88]; the Learned Judge was wrong to assume and therefore find that the trial Judge “knew how to perform her functions and which matters she should take into account” [§ 89] and thereby applied PD12J when it is submitted, the elements of PD12J and a pattern of coercive and controlling behaviour in accordance with H-N and Others were wholly absent;
Ground III: Noting the position also adopted by the Guardian in the appeal proceedings who “suggested that the trial judge may have erred by placing too much weight on the resumption of the sexual relationship between the parties in 2017”[ § 97], the Learned Judge was wrong in her approach to the sexual history of the complainant in finding that the trial Judge was entitled to attach significant weight to that issue after the rape allegations [§ 100].
Ground IV: The Learned Judge erred in failing to set out a clear definition of rape and/or sexual abuse and/or consent in family law proceedings;
Ground V: The Learned Judge failed to draft a consistent approach to a complainant’s sexual history in the family courts;
Ground VI: The Learned Judge failed to provide any guidance to ensure that Family Judges give themselves a suitable warning about rape myths when determining allegations of rape and/sexual abuse.
The appeal will be heard in open court on 7 March 2023.
Related barristers: Anthony Metzer KC, Dr Charlotte Proudman
