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

Mrs Justice Judd, in granting an appeal against a fact-finding judgment in private law proceedings, stressed the importance of the court complying with Rule 3A and PD 3AA.

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Background

The parents met online in 2015 when the mother was a "cam girl", living in Eastern Europe, providing sexual services online to paying customers and the father was a client from England. They met in person in 2016 and a relationship developed, albeit with a period when the father stopped all contact for several months. The mother moved to England in 2017 to live with the father and the following year became pregnant. They separated a few weeks after the child was born and there were disputes about the father's contact and about money. In December 2019 mother removed the child to her home country; father made applications under the 1980 Hague Convention and the Children Act and mother was ordered to return the baby which she did in February 2020. She applied for leave to remove and father applied for a child arrangements order. Mother made serious allegations of domestic abuse, including three allegations of rape, one in circumstances where she alleged she was unconscious and not consenting.

The fact-finding hearing took place in November 2020 on a hybrid basis, with both parents giving their evidence in the court-room but neither being physically present to hear the other's testimony. This arrangement had been put in place at an earlier procedural hearing because of the court's Covid-19 precautions and at no stage was any application made, or consideration given, to participation directions or a ground rules hearing. Both parties were represented.

The judge heard oral evidence from family members as well as the parents, read a huge bundle and watched and listened to a large numbers of recordings, including extensive videos of the parents having sex, including one in which mother said she was unconscious, asserted that she had no memory of the events, and said it was rape as she had not been capable of consenting. In a reserved judgment she rejected the mother's allegations of rape and sexual abuse and found that she had made her allegations to improve her chances of obtaining leave to remove. She also rejected the father's allegations that mother had tried to control his contact with the child.

The Law (§17-27)

1. The appeal court's task in respect of an appeal against fact finding is to determine whether the judgment is sustainable, nothing less. (§17-19)

2. In general appeals brought on a matter not raised at first instance will not succeed, but there are exceptional cases in which the court would not apply that general principle. (§20)

3. PD12J sets out the process the court should adopt in determining disputed allegations of abuse. This case was heard before the judgment was handed down in Re H-N and Others (Domestic Abuse: Finding of Fact hearings) [2021] EWCA Civ 448 in which it was observed that the Family Court should be concerned with how parties behaved and what they did to each other and their children rather than whether their acts came within the definition of specific crimes. (§21-24)

4. The case was decided prior to implementation of s63 of the Domestic Abuse Act 2021 but the court had been obliged to follow Rule 3A and PD3AA in respect of vulnerable witnesses. If a vulnerable witness is to give evidence there must be a ground rules hearing to consider how the evidence should be given and direct the manner of any cross examination. (§25-27)

The allegations (§28-29)

As well as the rape allegations, mother asserted that father has an obsessive sexual compulsive disorder and has desires towards young looking girls. She said he had been controlling, manipulative and intimidating, financially controlling and physically violent. She alleged inappropriate behaviour towards the baby and referred to her in abusive terms.

The father alleged that mother had caused the child emotional harm by removing her from her home, controlled how the father spent his time with the child and that she used abusive terms to refer to the child.

The judgment (§30-38)

The judge had identified that the circumstances of the parents' meeting could give rise to a power imbalance but one should not assume that all sex workers are vulnerable. She was satisfied that the relationship was not controlling, manipulative or abusive and that they had a consensual sexual relationship throughout, with both parties having the freedom and capacity to consent; she said there was no credible evidence that any sexual acts during the relationship were not consensual. She described mother as "relaxed" rather than unconscious in the video of the alleged rape. She rejected the allegations of violence and considered the mother's allegations were manufactured to aid her case for removal. She found that the father preferred adult women younger than himself which was a legitimate sexual preference and rejected the allegation of inappropriate behaviour with the child. While she noted concerning discussions about maintaining a certain body weight she did not consider this evidence of controlling behaviour.

The judge considered the mother was not controlling of the child's time with her father and her behaviour was that of an anxious first time mother.

The Appeal (§39-49)

Permission was given on two grounds, firstly the absence of special measures sought or implemented for the mother and secondly whether the judge balanced the evidence properly looking overall at the allegations.

It was pointed out that on day 1 father spoke directly to the judge saying that he could not see mother on the screen, to which the judge responded that he ought to be able to see her when she was in the witness box, and if he could not he should raise his hand. It was said that consideration should have been given about whether mother should in fact have been visually shielded from the father. It was also argued that, given the clear risk that mother could be asked questions about her sexual history that could be humiliating and intimidating, there should have been a ground rules hearing to consider what topics could be covered in cross examination. This did not happen and it was asserted that mother had been re-traumatised; further it was suggested to mother that because she had consented to certain sexual acts she had given a blanket consent to everything.

It was also argued that the judgment lacked analysis and the evidence was compartmentalised and not put into context. As well as criticising the basis on which the judge appraised mother's overall credibility, mother's counsel emphasised what was said to be a failure to address the question of mother's vulnerability. It was said that the judge gave too much weight to the many videos of the parents having consensual sex.

Father's case (§50-58)

The father sought to uphold the judgment; not only were most of the points raised in the appeal not taken at first instance, but at no stage did mother show distress during or before giving evidence.

Discussion and conclusions (§59-88)

Ground 1

Consideration of Rule 3A and PD 3AA are mandatory and the obligation to consider vulnerability is the court's. This was a very sensitive case and cried out for participation directions and a ground rules hearing. It is not possible to know what effect the lack of special measures had on the mother. The judge did not find the mother's evidence credible and found the father a much more impressive witness. The failure to abide by the procedural rules was so serious that the decision cannot stand. This was a stark reminder to all that these matters need to be addressed to avoid the integrity of the trial being undermined.

Ground 2

The judge did not give sufficient consideration to whether the mother might have been vulnerable or over-dependent in the relationship, which is important because a vulnerable person might act differently from a more independent and confident one if they are exploited or abused in a relationship. The judge's belief that mother would not have stayed in an abusive relationship led her to conclude that she was lying about it, which tainted her views of her evidence as a whole.

The appeal was allowed and a retrial will be held before a Family Division Judge.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII