[2024] UKUT 311 (AAC)

Error in placing too much weight on the contraceptive implant

The First-tier Tribunal erred in placing too much weight on the contraceptive implant.

The First-tier Tribunal said (paragraphs 91 to 93, written reasons)—

“91.

While the Appellant has provided a statement that she is friends with her partner rather than they are sexual partners, we found this is inconsistent with the GP records which shows [sic] the Appellant has a contraceptive implant every 3 years (C141/142); in May 2018 and May 2021. There is reference to an implant fitted in June 2015 (C97). There is no mention in the GP records of any significant gynaecological condition requiring hormone treatment. We found the objective evidence supports the Appellant uses contraceptive implants and this has been the case for several years.

But as to Mr H’s sexual relationship with W, Dr Murton and Dr Holt reported that Ms H had told them as follows.

She told Dr Murton (page C58, second paragraph) that—

“They are not very sexual or intimate and she says that she does not really like people in bed with her, so he often sleeps on the sofa to accommodate this”.

This was not a statement to Dr Murton that Ms H never has sex with W.

Dr Holt reported at paragraphs 6.2.5, 6.2.9.4 and 6.3.4.2 that (pages C349, C352 and C355)—

“When asked about her relationship with [W], Ms [H] explained that they’ve got a ‘friend relationship’ which does not include much intimacy or ‘passion’… As already outlined, Ms [H] described limited intimacy and sexual contact within her relationship with [W]; she informed me that sometimes he sleeps on the sofa and sometimes they sleep in the same bed, but this depends on whether or not she feels about to be physically close to him … Ms [H] made a direct link between the index abuse and patterns in her current sexual relationship; she stated that during times of intimacy she has had upsetting thoughts and memories of the index abuse. She described thinking ‘I did this when I was eight’ and the fact ‘[I] don’t’ want to be back in that place’ … Ms [H] did also detail a more general tendency to avoid intimacy, and explained that this is directly related to the index abuse”.

None of what Dr Holt reported was that Ms H said she never has sex with W. Not having “much” intimacy or passion with him is not the same as never having any intimacy or passion with him. Having “limited intimacy and sexual contact within her relationship with [W]” is not the same as never having any intimacy and sexual contact with him either.

I could find no statement from Ms H that she never has sex with W. I said in granting permission that, if I had overlooked it, CICA would no doubt bring it to my attention. CICA have not brought any such statement to my attention. I find that there was no such statement by Ms H.

So, having a contraceptive implant for the possibility of sex was not inconsistent with Ms H’s evidence that the relationship does not include “much” intimacy or passion.

In any event, when each renewal time came, only once every three years, was Ms H really going to say, “No don’t bother, I will never have sex again”? She had the choice once every three years. It is not as if she was choosing to take the pill every day and could choose a month off (although even then, she could not be blamed for continuing the pill just in case).