“Consent – does it matter?” – Karen Lennon and Oliver Latham discuss the decision of Knowles J in F v M and the approach to rape allegations in Family Law proceedings

Introduction

In March 2021, the Court of Appeal handed down its now oft cited decision in Re HN [2021] EWCA Civ 448. That case is famous amongst family lawyers as the architect of the modern approach to umbrella allegations of coercive and controlling behaviour. The focus of this article however is on sexual abuse allegations, in particular those of rape. Re HN also had much to say about the approach to rape allegations in finding of fact hearings, commenting that:

“Family courts and the parties who appear in them should (not) shy away from using the word ‘rape’ in the manner that it is used generally in ordinary speech to describe penetrative sex without consent. Judges are not required to avoid using the word ‘rape’ in their judgments as a general label for non-consensual penetrative sexual assault; to do otherwise would produce a wholly artificial approach.” (at para 72)

In the same paragraph though the court referred to the well-known case of Re R (Children) (Care Proceedings: Fact-finding Hearing) at paragraphs 62 and 66, and the prohibition it introduced on the “direct application” of criminal law to finding of fact hearings, having alluded to Cobbe J’s remarks in F v M [2019] EWHC 3177, that the family court should not “become too distracted by criminal law concepts”. The answer to how much distraction was too much was not given. Nor was there any resolution of the arguable tension between not “shying” away from deploying a highly stigmatising and serious criminal label (“rape”) to describe abusive behaviour on the one hand, whilst eschewing any “direct application” of criminal law principles, on the other. The answer was not given by the Court of Appeal on this occasion.

This article explores whether, two years later, there is any further clarity, and whether in particular there is any greater clarity as to how the court should approach the central issue of consent when approaching rape allegations. This is an issue that has ramifications for both private and public law children proceedings and domestic abuse proceedings in general, where the very same allegations of rape are often deployed and adjudicated on by way of a fact finding hearing. It is therefore an issue of the highest importance in family law.

F v M (Fact Finding: Domestic Abuse: Adequate Reasons) [2023] EWFC 48]: the decision

Knowles J handed down judgement in F v M [2023] EWFC 48 in early April 2023. This was an appeal against a decision of DDJ Carson following a fact-finding hearing.

The DDJ made the following findings, which are summarised in paragraph 12 of Knowles J’s decision:

1. a) On occasions during the course of their relationship, the father forced anal sex on the mother and pressurised the mother to have sex when he must or ought to have realised that she did not want sex;
2. b) The father vaginally raped the mother on one occasion;
3. c) The father anally raped the mother on four occasions;
4. d) On some occasions, the father attempted to force oral sex upon the mother and on occasions he was successful in orally raping her. On 17 August 2018 the father attempted to rape the mother orally;
5. e) The father smashed the mother’s phone during an argument in March 2015;
6. f) In or about April/May 2015, the father was verbally abusive to the mother and smashed up her door and some of her property;
7. g) In early November 2015, the father assaulted the mother by pinning her against a wall, pushing her and being verbally abusive to her;
8. h) The father blamed the mother for causing damage to A’s face during childbirth in the heat of the moment as part of an argument during the parties’ turbulent relationship;
9. i) The father lost his temper with A during one occasion as part of bath time and may well have scared her, but had no intention of causing harm to her;
10. j) Throughout the parties’ relationship, the mother had been subjected to controlling and coercive behaviour in respect of the father’s sexual demands and desires.

The focus of this article is on findings a-d (the rape findings).

Three grounds of appeal were advanced by the appellant father, all of which focused on the quality of the judicial analysis of important issues of fact or law, including consent (paragraphs 2 and 25). The court was specifically invited by the one of the authors of this article, who represented the appellant father, to consider the issue of consent and the quality of the judicial analysis that had been deployed by the deputy district judge when considering whether or not the mother had been raped on multiple occasions. Ground three of the grounds of appeal focused on the judge’s failure to explicitly deal with the issue of consent in relation to each individual finding, after the judge had failed to deal with that issue allegation by allegation, albeit that the word consent was referred to in the judgment, as noted by the respondent mother (paragraph 37). When clarification questions were asked about regarding the judge’s failure to address the consent issue expressly, allegation by allegation, the judge responded that “it is of course implicit that if I have made a finding of rape that there was no consent from the mother”. This prompted Knowles J to query in her judgment: “was the judge required to address consent with respect to each and every occasion of alleged rape” (at paragraph 39).

Knowles J responded to this question in the negative stating “I do not think that he needed to, given the way in which he addressed both the allegation that the mother had been anally raped four times and the allegation that the mother had been orally raped by the father on more than one occasion.” The justification for so doing, was reliance on Knowles J’s previous decision in A and D v B, C and E [2022] EWHC 3089 (Fam) (see paragraphs 23-32), in which she rejected any invitation by the family court to construct its own definition of consent in finding of fact hearings.

It seems to be accepted by Knowles J that the court will be required to address consent when faced with rape allegations, although it appears to have been sufficient in F v M for the judge to have made reference to it in his judgment to ensure that he had assured the appellate court that he “understood the concept of concept and had applied it when reaching his conclusions” (paragraph 37). The contention of the appellant was that this posed the danger that only lip service had been paid to the issue and provided inadequate explanation to the parties as to why such a serious finding had been made. More fundamentally though the point was made that the importance and centrality of the consent issue required there to be explicit and reasoned judicial analysis, allegation by allegation, of it.

Knowles J’s response was that the primary focus should be on “behaviours” and the “intimate behaviour of the parties towards each other” (paragraph 41). This apparently echoed and applied her approach in A and D (at paragraph 26) where she held that the court should not become “unnecessarily bogged down in legal technicality” (applying paragraph 29 of Cobb J’s decision in F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) and paragraph 66 of Re R) and should instead focus on the “narrative account of what the court has determined on the balance of probabilities has happened in the lives of a number of people, and often, over a significant period of time” (Re R, at paragraph 62). Knowles held in that decision, and reiterated it in F v M (see paragraph 31) that “the comments of the Court of appeal at [71] in Re HN are crucial in underscoring the clear distinction between the family and the criminal court, namely that:

Behaviour which falls short of establishing “rape”, for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to “not guilty” in the family context. For example, in the context of the Family Court considering whether there has been a pattern of abusive behaviour, the borderline as between “consent” and “submission” may be less significant than it would be in the criminal trial of an allegation of rape or sexual assault”.

Shortly after handing down judgment in F v M, the Court of Appeal whole heartedly endorsed Knowle’s J judgement in A and D v B, with the President confirming his “full agreement” with it (A v B and C [2023] EWCA Civ 360, paragraph 4).

Analysis: reasoning

The focus of this article is not specifically on Knowles decision in A and D v B, which has already been analysed by both the Court of Appeal and members of the Bar. It is this article’s contention that that case raised a different issue to that which was before Knowles J in F v M: it is contended that arguably the appellant in A and D v B approached matters from the wrong angle in arguing for a new definition of consent and essentially inviting the court to legislate in an area that Knowles J noted Parliament had declined to interfere with when it passed the Domestic Abuse Act 2021. Whilst this article accepts that in these circumstances it would be imprudent and unprincipled for the family court to create a specific and novel definition of rape in family proceedings the question remains as to how the court should approach rape allegations on a case-by-case basis, which was what was in issue in F v M.

The reliance by Knowles J on her previous decision in A and D arguably confused the issue as the appellant in F v M was not seeking a precise definition of consent, or indeed a replication of criminal definitions. That debate has clearly, and perhaps rightly, been put to bed by Re HN, applying Re R. What the appellant in F v M was asking Knowles J to confront however, was that the importance and the act specific nature of consent is such that it requires explicit and proper analysis, allegation by allegation and that there is an important difference between a finding of rape and a finding of profoundly sexually abusive behaviour.

Attempts to illumine the distinction between rape and “lesser” sexually abusive behaviour can be found in the case law, in particular Ms Justice Russell’s reference at paragraph 50 of JH v MF [2020] EWHC 86 (Fam) to the Blackstones definition of consent, which “covers a range of behaviour from whole hearted enthusiastic agreement to relucant acquiescence” and reminds courts that “context is critical”. This decision predates re HN and is unlikely to represent the law following the Court of Appeals identification of a tension between JH and Re R (as noted in paragraph 16 of Knowles J’s judgment in A and D v B). However, on one view it provided a useful indicator to family judges of the spectrum of behaviours that should properly be regarded as rape, without introducing a prescriptive definition of consent. Notably, at paragraph 30, it is accepted by Knowles J that in discrete circumstances the family court can rely on criminal principles where “these relate to the broader task of evaluating evidence more generally”. There is an arguable difference between the family court prescriptively defining consent as a matter of law and the family court being able to refer to criminal principles or guidance as an aid to adjudicating on whether as a matter-of-fact consent has been given or not. Indeed, the President appears to recognise this clear distinction between offering guidance and creating a definition of rape in his judgment in A v B and C (see paragraph 15).

On one view, F v M may be regarded as consistent with re HN’s “umbrella” style of making findings, focusing on adopting an overarching assessment of behaviours, rather than forensically focusing on individual examples. This is the rhetoric that is deployed by Knowles in paragraphs 39 and 41 of her decision, in which she held that there was no requirement for the judge to individually approach consent in relation to each individual rape allegations. However, as a matter of principle and common understanding, consent and rape are act and context specific. One can consent to one activity but then immediately withdraw the same at a later time or withdrawn consent when the nature of the activity changes. This reflects basic public understanding of consent, which it would be hoped is relatively well known and publicised in the modern era, and there has been a great attempt through government advertising to ensure that consent is properly understood by the public. On its face therefore there would seem to be a necessity, at least at the level of principle, for a family judge to approach consent anew as an issue with respect to each allegation.

Perhaps more fundamentally though, the DDJ in F v M did not simply make umbrella findings of abuse, nor did he substitute the rape allegations for general findings of profoundly sexually abusive behaviour. He was invited to and did make specific findings of rape. To both parents in the case, these individual rape allegations no doubt were important and hence were pleaded as such by the mother in her schedule of allegations. Additionally, they seemed to be important to the DDJ who regarded it as necessary for him to go on to make individual findings of rape. Whilst it would not have been remarkable for the judge to have simply made general findings, for example a general finding of coercive/controlling behaviour (and indeed Knowles reminds us at paragraph 28 of A and D v B that “what ought to be the focus of a fact-finding exercise in children cases…(is) whether the adult relationship was characterised by coercion and/or control”) the DDJ in F v M went much further than that in making multiple findings of both oral, vaginal and anal rape. There is therefore, arguably, an inherent tension between Knowle’s deployment of Re HN in order to focus on general behaviours rather than “specific events” (see paragraphs 22-28 of Knowle’s judgment in A and v B) and her use of that reasoning in order to upheld individual, specific rape allegations which were made by DDJ Carson.

The tension is further magnified in light of Knowles J assertion that “a focus on consent and the father’s state of mind as advocated for by Mr Latham would, in my view, have resulted in the judge becoming too narrowly focussed on criminal concepts in his investigation and evaluation of the nature of the relationship between these two parents”. Re HN makes clear both that the court should not “shy away” from conceiving of rape as non-consensual sex but, further, that “it is equally important to be clear that not all directive, assertive, stubborn or selfish behaviour, will be ‘abuse’ in the context of proceedings concerning the welfare of a child; much will turn on the intention of the perpetrator of the alleged abuse” (my emphasis added).

The appeal court in F v M was not being invited to revisit the point made by Knowles J in A and D v B, at paragraphs 26 and 27, that the court should scrutinise a wide canvas when analysing important disputes issues of fact. In fact, one of the arguments deployed by the appellant in F v M was that the judge had failed to properly scrutinise the full canvas and this fed in to the argument in relation to consent (see paragraph 36, for example). Knowles J arguably dodged the critical issue in asserting in response that paragraph 71 of Re HN was “apposite” (paragraph 41). The point that was made in paragraph 71 was that the court should not ignore behaviour that is profoundly abusive, by a finding “akin to not guilty” in relation to the rape finding. However, it was not asserted by the appellant father that his sexually abusive behaviour, if substantiated, should be ignored by the court simply because the court felt unable, on the evidence, to make a finding of rape. There was no attempt to argue that such black and white reasoning would be appropriate in the family context. Indeed, the father fully accepted that admissions had been by him during the course of the finding of fact hearing which were used by the judge as part of the wider canvas of evidence. What was in issue was the quality of the judicial analysis of consent that had resulted in the father being labelled a rapist by the family court. No issue was taken with the ability of the family court to substitute a lesser finding in place of a rape finding. However, this was not a course that was considered or adopted by the DDJ, who made rape findings. It is perhaps uncomfortable that such a critical issue in this appeal, and to fact finding hearings concerning rape allegations as a whole, was justified by referencing assertions in Re HN that on their face do not appear to be apposite at all.

Future impact?

Knowles’ claims that both her decisions are the product of the Re HN/K v K jurisprudence, but on one view they might be seen as going further in reconceptualising, and arguably watering down, the judicial approach to rape allegations within family proceedings. This watering down might be regarded as palatable and justifiable if the court did in fact shy away from using the term “rape” when making findings, and instead focused on sexual abuse as a general umbrella category of harm, perhaps in similar vein to the modern approach to coercive controlling behaviour. That avenue is however closed by re HN and the enjoinder not to shy away from utilising the term rape when making findings. It might have been hoped though, that if that is the approach that is to be adopted by the family court, that this would bring with it a need for more rigorous delineation of varying forms of sexually abusive behaviour in order to forensically assess whether there is truly “penetrative sex without consent”. Instead, critics of the current case law may point out that the judicial approach to rape is now out of touch with the “ordinary speech” definition of rape, and has been transformed into an amorphous category conflating rape with other forms of “profoundly” sexually abusive or sexually controlling conduct, but with the retention of a stigmatic label of rape to encompass all such behaviour, depending on the way in which the allegations before the court are pleaded and the whims of the judge hearing the matter.

Terms such as profoundly sexually abusive behaviour are likely to be mean very little to those outside the judiciary and the legal profession, and perhaps little to practitioners themselves. They appear to introduce the very technicality in the family court that the appeal courts claim they are trying to avoid, albeit that that technicality is now capable of being internalised in the mind of the individual judge, who need not expressly justify his findings on consent in relation to each rape finding. The focus on the “intimate behaviour of the parties”, but without the requirement for stringent analysis of consent particular to the act complained of, appears to provide little, if any, assistance to judges faced with rape allegations in the family court.  This is not to say that there is no role for lesser findings of sexual abuse: in appropriate cases the family court may, as identified by Cobb J in F v M (above), identify a lesser form of behaviour that nonetheless should not be ignored albeit that it does not constitute rape because there has been consent. However, the family court should be ensuring that rape is rape, and delineated as such.

Proponents of the current judicial approach may ask why it matters from a risk analysis perspective, and on one view the current approach is certainly in line with the shift towards protecting alleged victims of abuse. Is it protectionist though to devalue the concept of “rape” within the family court by lowering the judicial benchmark in terms of the analysis of consent that is required? There may be some who are distinctly uncomfortable with a parent being labelled a rapist by the family court without express and act specific analysis of consent, when this is the rhetoric the children are likely to be fed by the other parent as they grow up. In cases where the child is a product of intercourse which the family court deems rape, such a finding could have long lasting psychological impact. In certain professions, the rape findings made by the family court may have dramatic and life changing consequences, alongside the social stigma that such a label generally carries. There is likely to be a perceived difference within social and professional circles between a finding of rape and a finding of submission to sex within a controlling relationship, given the former is a recognised criminal offence. The difference of label between rape and other forms of sexually abusive behaviour is profound in terms of its impact on the victim, perpetrator and the child. Aren’t the examples in this paragraph, examples of harm to the family that directly stem from contact and the parent-child relationship, which it is necessary and proportionate to adjudicate on and delineate from other sexual misconduct within a relationship?

Conclusion

Advocates of the decision in F v M may query why it matters from the perspective of the child whether there has been rape in the home or only a lesser form of “profoundly abusive” sexual behaviour. The conclusion reached here is that it emphatically does matter and that both alleged victims and perpetrators are now left in the unfortunate position of being unable to define the label that is going to be attributed to their alleged behaviour or the nature and quality of the judicial analysis that will be deployed to justify it. Far from resolving the tension in Re HN alluded to in the introduction to this article, it may be said that the recent decisions on consent simply paper over them and introduce problems of their own. It is hoped that whilst now may not be the time for further appellate consideration of this issue, that there will be a reconsideration of the state of this area of family law in the near future. This is not however an issue that is likely to be resolved anytime soon. Appeals on private law matters are rarely publicly funded and it may be that a challenge to Knowle’s approach is reserved for the ultra-rich.

Karen Lennon

Oliver Latham

Park Square Barristers

With 15 years of experience in family Karen is a heavy weight practitioner who is highly regarded by her colleagues and the judiciary for her breadth of  knowledge and understanding of law and practice, her thorough and analytical consideration of complex and difficult cases and her dynamic approach.

Oliver Latham appeared unled for the father before Knowles J in F v M and is ranked in the Legal 500 as a “Rising Star”. He accepts instructions in all areas of family law