Following the Court of Appeal’s recent decision to uphold Knowles J’s ruling in A v B and another [2023] EWCA Civ 360, our Head of Chambers – Richard Barton – sat down with our Head of Family – Maria Hancock – to discuss the key facts and the impact the outcome could have on both Family and Criminal Law.

RB – “The very recent decision of a particularly strong Court of Appeal upholding Knowles J’s ruling in A v B and another [2023] EWCA Civ 360, drawn to my attention by Maria, has implications for both Family and Criminal Law.”

MH – “To set the scene, Richard, the President gave the Judgment of the Court of Appeal in the appellant mother’s second appeal against the trial judge’s findings following a Fact-Finding Hearing in the Family Court. The issues relate to the Family Court’s approach to allegations of Rape and Sexual Abuse made by one parent against the other. I agree with the President when he describes the appeals as raising a number of overarching issues regarding the approach that should be taken in the Family Court where allegations of Rape are made in the context of private law proceedings.”  

RB – “From a Criminal Law perspective I find it quite perplexing.  I understand why the CoA emphasised the need for first instance tribunals to concentrate only on the fact-finding necessary to determine the issues before the court, but they also cite Re H-N, where an alleged rape of a person with day-to-day care of a child by someone who is seeking future contact is given as an example of something that would almost always be a necessary part of the fact-finding.  Is that what happens in practice in the Family courts?”

MH – “I think these appeals, whilst obviously addressing the specific facts of the particular case, also deal more extensively with general propositions, e.g. as to how the Family Court should approach definitions of Rape, Sexual Assault and Consent, whether any failure to have a consistent approach breaches ECHR Articles (6,8 and 14) and how criminal justice definitions of these offences fit in the Family Court.

But, yes, Richard, the Family Court is primarily concerned with how parents have behaved to each other and their children in order to assess risk and determine welfare issues, rather than deciding whether certain behaviour comes within the definition of Rape (for example). A parent’s conduct may be such as to give rise to a genuine risk and real harm, but may not be conduct which satisfies a criminal offence. So, it would be conduct which would be relevant to the welfare of children, even if not a criminal act.”

RB – Obviously there are, and always have been, differences in the standard of proof as between Crime and Family cases.  The courts have over the years had a great deal of difficulty in giving a coherent explanation of the distinction.  Do you think this has been resolved satisfactorily?

MH – “I’m not sure there is really anything to resolve. Where there is some risk to a person’s liberty, as in the Criminal Court, the higher standard applies. So, for example, where someone has breached Family Court Orders and there is a risk they may go to prison, the standard is the same as in the Criminal Court. Where the issue is a child’s welfare, the standard is the balance of probabilities. This is in step with all other civil cases. If the higher standard were to apply, it is likely that more children would be more at risk. There are, undoubtedly, injustices in both systems.”

RB – “My real concern with the CoA ruling is the continued separation as between the Criminal and Family courts of the definitions of acts and elements of what could be offences.  I do not understand why, within the context of the differing standard of proof and the need to scrutinise only those matters that are necessary to decide the issue in the Family court, there cannot be the same definition of the core acts or elements across both jurisdictions. 

Should, for example, ‘rape’ or ‘sexual assault’, not mean the same thing in all Courts of England and Wales?”

MH – “I agree that Rape and Sexual Assault should mean the same and Cobb J in F v M [2019] EWHC 3177 observed that not using the word “Rape” so as to avoid straying into criminal concepts would be artificial, insulting and harmful to victims. However, the Family Court is not the place to consider whether someone’s conduct satisfies the ingredients of a criminal offence and/or whether certain defences may be established.

Deciding whether someone is “guilty” of a specific offence would be too narrow a focus when what is required in the Family Court is to establish what has happened and assess the risk to the victim and the children.”

RB – “Here at Westgate we have a strong and supportive link between those who practise Crime and Family respectively, as there are often overlaps in the issues we have to address.  I know that you, like me, think that this crossover is one of the great strengths we have as a Chambers. 

Do judgments like this have the potential to undermine those links between the two disciplines?”

MH – “I don’t, Richard. There are obvious differences but I also think the links between the two disciplines are pretty strong. Take, for example, Lucas. The Family Court has adopted the modified Lucas direction, namely that a lie is capable of amounting to corroboration if it is a) deliberate, b) relates to a material issue and c) is motivated by a realism of guilt and a fear of the truth.”

RB – “It is always useful to share our respective perspectives of the justice system, and I look forward to continuing to do so with you in the years to come.”

MH – “Agreed. Happy to do so.”

If you have a client that is either in pre-proceedings or in proceedings, that involves any of the issues and you would like to talk through the details in confidence with Miss Hancock, or one of our other experienced family barristers, please contact us today.

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