This article explores the issue of domestic abuse in the appeal of Re H v F . This article should be read in conjunction with Lavinia Glover’s article which analyses the issue of special measures when giving evidence within the same case.
JH (Appellant) and MF (Respondent) were 17 years old and 23 years old respectively when they commenced their relationship. They have one child together.
This appeal followed a fact-finding trial in proceedings for a child arrangements order. There were complaints of domestic abuse, including sexual assault by penetration.
Mrs Justice Lieven granted permission to appeal, four days out of time, on each of the grounds advanced by the Appellant. Ms Justice Russell DBE allowed the appeal on the basis that the judge’s conduct of the hearing was “fundamentally flawed and unjust for procedural irregularity”.
Police records demonstrated a history of domestic abuse throughout the relationship and categorised the Appellant as a ‘high risk victim’. Police records also disclosed the Respondent’s litany of previous convictions including numerous ‘call outs’ in respect of domestic abuse by the Respondent’s previous two partners.
The Appellant’s case was that the Respondent was aggressive, intimidating, controlling, emotionally and verbally abusive, as well as physically and sexually assaulting her throughout their relationship.
The Appellant alleged that the Respondent had sexual intercourse with her on two occasions without her consent. The Appellant subsequently fled, taking the child with her. She reported the assaults to the Police. During this time, the Respondent’s neighbours reported him to the Police for harassment.
The Appellant’s counsel submitted that the judge failed to apply the provisions of PD12J of the FPR and drew the Appeal Court’s attentions to the following definitions:
- “domestic abuse” includes any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality;
- “coercive behaviour” means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; and
- “controlling behaviour” means an act or pattern of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour.
Further reference was made to the definitions of “domestic abuse’, “controlling behaviour” and “coercive behaviour” used in Government guidance. I include the below reference in full regarding the Government guidance addressing factors affecting the seriousness of the behaviours:
“Domestic abuse offences are regarded as particularly serious within the criminal justice system. Domestic abuse is likely to become increasingly frequent and more serious the longer it continues and may result in death. Domestic abuse can inflict lasting trauma on victims and their extended families, especially children and young people who either witness the abuse or are aware of it having occurred. Domestic abuse is rarely a one-off incident and it is the cumulative and interlinked physical, psychological, sexual, emotional or financial abuse that has a particularly damaging effect on the victims and those around them. Cases in which the victim has withdrawn from the prosecution do not indicate a lack of seriousness and no inference should be made regarding the lack of involvement of the victim in a case”
Any judge dealing with matters of domestic abuse must be fully aware of the relevant guidance and definitions. The appeal judgment found that the trial judge failed to bear in mind the relevant guidance in any part of his judgment.
By dismissing reports from the Police and complaints by others and only concentrating on the oral evidence of the parties, the judge failed to take into account relevant material which “might reasonably have been found to have indicated a concerning history of reported aggressive, criminal and violet behaviour on the part of the Respondent”.
Contrary to the provisions of PD12J, the trial judge failed to make any findings regarding the Appellant’s specific complaints of the Respondent’s use of language. It was the Appellant counsel’s submission that the trial judge’s conclusions in respect of the Respondent’s controlling and coercive behaviour were predicated on an assumption that the use of language cannot form a significant part of the basis of a controlling relationship.
Ground 3 of appeal was that the judge placed undue weight on the demeanour of the parties in Court when assessing their evidence. The Respondent’s was described as “the more convincing witness” and “straightforward” and the Appellant as “highly anxious, it might be said, neurotic, disposition”. This conclusion was drawn without any forensic expert evidence. The judge failed to consider, or even entertain, that the Appellant’s anxious presentation may be the result of previous abuse by the Respondent or that as a vulnerable witness she was likely to be distressed.
Ground 4 of the appeal stated that the judge failed to (i) properly assess the Police reports and (ii) take into consideration that the Respondent had a history of being involved with the Police due to domestic violence and harassment.
The judge appeared to accept only one incident of domestic abuse; however, he did not make a finding. He commented that there was “only one allegation of violence” which emphasizes the failure to consider and/or appreciate that domestic abuse is not confined to physical violence. The Judge concluded that the one allegation of violence “goes no further, really, in my view, on analysis, than saying that the relationship had its difficulties”. The judge further commented that the discontinuance of complaints after the relationship ended supported the fact that there was minimal domestic abuse. He failed to appreciate that the Appellant had fled the family home and her subsequent location was not known to the Respondent.
At ground 5 of the appeal it was submitted that the judge “had been wrong to make findings on matters which were not put to the Appellant”. The judge concluded that texts such as “if you don’t shut up I will stick my cock up your ass” were consistent with “sexting”, this was not the Respondent’s case nor put to the Appellant in evidence. The content of the Respondent’s texts was relevant to considering controlling and coercive behaviour and complaints of sexual assault. However, the judge failed to understand the importance of considering the effect of the messages on the Appellant.
Ground 6 of the appeal dealt with the findings that the Appellant had not been subjected to sexual penetration without consent. The appeal judge stated, “that the judge’s approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct”.
The judge recognised that the Appellant had requested the Respondent to stop intercourse and he did not, and on another occasion that intercourse started without the Appellant’s consent. He noted that the Appellant did not physically resist intercourse and did not appear to make initiating intercourse with the Respondent difficult, for example by preventing the removal of her pyjama bottoms. Therefore, indicating that the complainant needs to physically resist penetration to establish a lack of consent.
The judge went further commenting that the Appellant did not take immediate action to call the Police or anyone else. The judge failed to acknowledge that it is widely accepted that many victims will not report, or delay reporting, a sexual assault for a variety of reasons.
Despite the Appellant consistently stating that she either removed consent during intercourse or that intercourse started and continued without her consent, the judge found that “sex between the parties carried the consent of both” and that if the Appellant became “upset and adverse to the idea of the intercourse continuing…this is something which was usual for her, the product of events in her past and her psychological state in not being able to take pleasure from sex. It was not a consequence of any action on the part of the father”.
The judge failed to explain (i) why it was evident to him that the Appellant had become adverse to intercourse continuing and not evident to the Respondent and (ii) why it was acceptable for the Respondent to insist on intercourse knowing that it was distressing and unwelcome to the Appellant.
Although the Family Court has a distinct and separate role to the Criminal Court, it cannot be lawful to apply wholly different concepts such as consent in relation to sexual intercourse. It was found that the trial judge approached the issue of consent “in a manner so wholly at odds with that taken in the criminal jurisdiction”.
The judgment minimised the Respondent’s abusive behaviour and failed to appreciate that the examples given by the Appellant, whether language used or texts sent, may form part of a pattern of controlling and coercive behaviour.
The judge was critical of the circumstances in which the allegations came to light and in doing so he failed to consider the material issue of whether the Appellant had the freedom and capacity to consent to sexual intercourse. Without consideration of the central issue of consent, any finding regarding an allegation of sexual intercourse without consent is unsafe.
It is unclear how widespread misconceptions of domestic abuse are within the legal system. However, it is clear from the trial judgment that outdated misconceptions are still present and in some circumstances to a high degree. Given the developments in the area of domestic abuse, it is imperative that the judiciary and advocates stay abreast of current definitions and practices to ensure a fair trial and safe decision.
The full appeal judgment can be read here.