F v M (Appeal: Finding of Fact)

In family fact-finding proceedings, the court’s task is to determine what happened on the balance of probabilities. It should not decide whether a criminal offence has been proved by applying criminal-law concepts as a freestanding legal framework.

An appellate court should interfere with findings of fact only where they are demonstrably contrary to the weight of the evidence or the decision-making process is plainly defective, making the findings unsafe. Where consent to sexual intercourse is withdrawn during penetration, continued penetration may constitute a serious sexual assault. Whether ejaculation occurred is immaterial where the finding rests on continued penetration after withdrawal of consent.

The father appealed against a fact-finding determination made by Her Honour Judge Scully in private-law proceedings under the Children Act 1989. The judge found that sexual intercourse between the parties had initially been consensual, but that the mother subsequently told the father to stop and withdrew her consent. She found that he continued and described the conduct, by reference to the Sexual Offences Act 2003, as rape.

Permission to appeal was granted by Cohen J. The father challenged both the factual finding that consent had been withdrawn and the legal description of the conduct, arguing that ejaculation had been accidental. The central issues were whether the factual findings were unsafe and whether the finding depended upon intentional ejaculation.

1. Appeal dismissed. The appellate court would interfere with a fact-finding decision only where it was demonstrably contrary to the weight of the evidence or where the decision-making process was plainly defective so that the findings were unsafe. The judge had properly assessed the evidence, including inconsistencies in both parties’ accounts, the contemporaneous messages and the parties’ credibility.
2. The fact-finding judge had the advantage of seeing and hearing the witnesses. That advantage was material, although it did not prevent appellate intervention where the established threshold was met. The judge’s directions on the burden and standard of proof and under R v Lucas; R v Middleton were appropriate.
3. The finding that the sexual activity had ceased to be consensual was amply supported. The mother’s repeated requests that the father stop, recorded in contemporaneous messages, provided a strong and consistent strand of evidence. The judge was entitled to reject the father’s denial.
4. It was immaterial whether the father had ejaculated accidentally or intentionally. The conclusion rested on the finding that the mother withdrew consent during intercourse and that the father continued penetration. In the criminal law, that conduct would fall within the statutory meaning of rape under the Sexual Offences Act 2003.
5. The family court may refer to statutory criminal definitions when assessing conduct, but its primary task is to determine the relevant facts for child-welfare purposes on the civil standard. Criminal concepts should not displace that task or cause the proceedings to become a trial of criminal liability. The circumstances could properly be relevant to whether the conduct was violent or abusive under PD12J and to future child-arrangements decisions.
6. It was proper to appeal the fact-finding determination before the final child-arrangements order because the finding directly concerned the issue on which the eventual determination of the proceedings would turn.

• Family Court: Following an earlier successful appeal from a district judge’s fact-finding decision, Her Honour Judge Scully conducted a rehearing in May 2019 and found that the father had continued sexual intercourse after the mother withdrew consent.
• High Court (Family Division): Cohen J granted permission to appeal on paper on 29 October 2019. Cobb J dismissed the appeal and upheld the fact-finding determination.