Dr Proudman wins rape and domestic abuse appeal on behalf of mother in family proceedings

M (A Child) [2021] EWHC 3225 (Fam)

Dr Proudman was led by Deirdre Fottrell QC and instructed by Cramp & Mullaney LLP on behalf of the appellant mother. The mother alleged rape, domestic abuse and coercive and controlling behaviour (“CCB”) by the father. At the fact-finding hearing, no findings were made on the mother’s allegations and the Judge found that the mother had fabricated one incident of anal rape. The mother applied for permission to appeal out of time, which was granted.

The appeal hearing was before Mrs Justice Judd sitting in the Family Division of the High Court. 

The appeal was allowed on two grounds:

1. There were no special measures for the mother who was a vulnerable party owing to her allegations of abuse. There is a duty on the court to assess whether a vulnerable party requires special measures in order to give her best evidence.

2. The judge failed to balance all of the evidence together.

There will be a re-trial before a High Court Judge.

This is an important case because it addresses a) the strict requirement of the courts to assess whether special measures are required; b) the mother’s implicit vulnerabilities which the trial Judge failed to take account of; c) if a complainant wishes to remain in a relationship (perhaps because of her vulnerabilities) that does not mean that the relationship is not abusive; and d) the judgment also touches on whether it is relevant for a party to submit videos of sexual intercourse to show that the parties had consensual sex therefore the mother cannot have been raped on a different occasion. This gives rise to the so-called ’sexual history’ defence. This is the first judgment that addresses the relevance of sexual history in family proceedings.

The case

The couple met online in 2015 when the mother was a ‘cam girl’, a prostitute “selling” sexual services via webcam to men (Johns), the father was a John. The mother was living in Eastern Europe and the father in England. There was a 20 year age gap & a power imbalance. They met in person for the first time in 2016 when the father travelled to the mother’s home city as a surprise. In 2018 the mother (M) became pregnant. The father (F) was unhappy about this & suggested that M have an abortion, or that M return home & raise the baby without him. Four weeks after the baby was born F told M that he did not wish them to be a couple. Over the next months, they tried to agree arrangements for the baby, which led to tensions about overnight contact. F was strongly maintaining he should care for the baby overnight & M should bring the baby to him to be breastfed when needed. 

M left to Eastern Europe to live with her family. F visited her and then returned to England and commenced Hague Convention proceedings. M returned. 

M alleged domestic abuse. Despite this, another Judge ordered that there should be contact. Dr Proudman appealed to the Court of Appeal and the appeal was allowed (by consent). There was no consideration of PD12J or whether contact would be safe given the live allegations of abuse. 

There were 14 allegations in the Scott Schedule. M made 3 allegations of rape against the father. During the FFH, there were no special measures and no one asked for them despite M’s clear vulnerabilities. The M’s allegations were not proved.

F submitted photos & videos of M engaged in the sex trade (even before the parties had met) and one video of the alleged rape. Interestingly, the trial judge said that the video showed M consenting to sex. The appellate court said M appeared drowsy; M says she was drugged. The appellate court cautioned against relying on videos of sex on other occasions to suggest that the M could not have been raped on another occasion. 

It’s important to note in this judgment that just because M wanted the relationship to continue it does not mean that she’s not a victim of domestic abuse. A woman can be a victim of abuse & still want to remain in the relationship. See:

82. The reason it was so important for the judge to give very careful consideration to the question of vulnerability in this case is because a vulnerable person may not act in the same way as someone more independent or confident if they are exploited or abused in a relationship. Such an individual may be so anxious for the relationship to succeed that they accept treatment that others would not. They may be easy to exploit. They may not even realise what is happening to them, and will cling to the dream of a happy family and relationship. From my reading of the judgment I cannot see that the judge gives this possibility serious consideration, nor do I think the videos of sexual activity would have been a reliable guide to the relationship more generally. I know that the judge referred to her cross jurisdictional experience, but her reasoning as to the allegations of rape focusses closely on the issue of consent and capacity rather than abusive behaviour in the wider sense. 

83. Here it is quite clear from reading the transcript of the hearing and judgment that in rejecting a number (although not all) of the mother’s allegations against the father the judge relied very much on the fact she wanted to be in a relationship with the father, she tried to get him back when he rejected her, and that she engaged in sex with him after occasions when she said he had raped or abused her. These reasons may well hold good in many cases, but most definitely not all. In some cases it is a very unsafe premise upon which to base findings of fact, especially if the alleged victim is vulnerable or dependent as the mother said she was here. Further, it seems to me that the judge’s disbelief that the mother would have remained in an abusive relationship led her to conclude the mother was lying about it. This tainted the whole of her evidence, and was a thread which ran throughout the case. 

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Related barristers: Dr Charlotte Proudman

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