Issues of consent in fact-find hearing

In December 2019 Ms. Justice Russell DBE heard an appeal from a fact-finding hearing that took place in private law Children Act proceedings at the Central Family Court in London in the summer of 2019. Her judgement was given in January 2020 and is reported as JH v. MF [2020] EWHC 86 (Fam).

The case concerned allegations made by the appellant mother of domestic abuse including allegations of serious sexual assault perpetrated on her by the respondent father.  The father had been unrepresented at the fact-finding hearing but assisted by a McKenzie Friend. As a result, the judge at first instance had to carry out the “cross-examination” of the mother. In her judgment, Russell J was critical of the way in which the judge had conducted the hearing and described the case as yet another example of “the way in which justice or a fair trial is compromised when the judge is required to enter the arena”.

As an aside, the reader may recall the difficulties that can arise from such a situation where an alleged perpetrator acts in person from the reported case of PS v. PB [2018] EWHC 1987 (Fam).

In this case, the mother was considered to be a vulnerable witness and Russell J. was also critical of the way in which the trial judge allowed her and the father to give their evidence. She considered these errors amounted to such serious procedural irregularities as would have allowed the appeal to have succeeded in any event.

However, the case is particularly noteworthy for two reasons: (a) the appeal court’s somewhat strident criticism of the judge for applying out of date concepts concerning the issue of consent, and (b) the emphasis placed on the way in which the issue of consent dealt with in the criminal jurisdiction should inform the approach that should be adopted in the Family Court.

The full facts of the case do not need repeating in this article but if time allows, they are worth reading to get a full flavour of the case.

Russell J considered that the trial judge’s judgement was seriously flawed and that his approach towards the issue of consent was “manifestly at odds with current jurisprudence, concomitant sexual behaviour and what is currently acceptable socio-sexual conduct”.

In her judgment, Russell J. went on to say:

“This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant had said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent. This would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim. Whilst the burden of proving her case was with (the mother) in any counter allegation the burden lay with (the father). Indeed it was (the father) who had brought the case as the applicant in the Family Court, thus the burden of proof did not lie solely with (the mother). Moreover the judge should have been fully aware that the issue of consent is one which has developed jurisprudentially, particularly within the criminal jurisdiction, over the past 15 years.”

Whilst it seems Russell J. was at pains to make plain that a trial in the Family Court should not seek to replicate a criminal trial she considered that it could not be “lawful or jurisdictionally apposite for the Family Court to apply wholly different concepts or to take an approach wholly at odds from that which applies in the criminal jurisdiction when it comes to deciding whether incidents involving sexual intercourse, whether vaginally penetrative or not, and other sexual acts including oral penetration, penetration by an object or in any other form were non-consensual.”

Russell J. quoted in her judgment from both Blackstone’s Criminal Practice and Archbold Criminal Pleading and Evidence. The judgment references these well-respected criminal practice books and highlights the following useful reminders:

  • Lack of consent need not be demonstrated by physical resistance. A complainant who simply freezes with no protest or resistance may not be consenting
  • Violence or a threat of violence is not a necessary ingredient
  • ‘choice’ is crucial to the issue of ‘consent’
  • context is all important

It is very much hoped that the reporting of this case will help to avoid such issues arising again. Russell J. made a recommendation in her judgment that judges sitting in the Family Court having to consider allegations of sexual assault where issues of consent are raised should have the same training as is made available to judges sitting in the criminal courts. Her judgment concludes by saying that she had discussed this with The President of the Family Division and that he was going to make a formal request to the Judicial College for such training to be made available. That would undoubtedly be a most welcome development and of huge benefit for judges sitting in future cases where similar issues are involved.