T (Appeal: Findings of Fact), Re

In family fact-finding proceedings, the court’s task is to establish a narrative account of behaviour relevant to the child’s welfare. It must not determine the facts by directly applying criminal-law ingredients, offences or defences.

A finding that conduct does not amount to rape or another specified offence does not resolve whether it was violent, abusive or otherwise harmful. Failure to prove an allegation does not, without more, establish that it was false or that the complainant was dishonest.

The father applied under section 8 of the Children Act 1989 for an order concerning time with his five-year-old son. Following a three-day fact-finding hearing, the Family Court found that the father had struck the child three times with a slider but treated this as reasonable chastisement, and found the mother’s allegation of rape not proven.

The mother appealed on the basis that the Recorder had contaminated the family fact-finding exercise with criminal-law concepts, including the defence of reasonable chastisement and the strict definition of rape. The central issue was whether the findings could stand and what factual matters should be remitted for welfare assessment.

1. Appeal allowed. The Recorder had found that the father struck the child with a slider on three occasions, once causing a transitory mark. That primary factual finding was sound.
2. The Recorder erred by asking whether the father could rely on reasonable chastisement in a criminal prosecution for common assault and by applying section 58 of the Children Act 2004. Family fact-finding must determine what happened and its relevance to welfare. The court may assess harm, but should focus on the impact and significance of the conduct rather than criminal culpability.
3. The Recorder also erred in analysing the mother’s allegation by reference to whether the conduct satisfied the strict criminal definition of rape. The appropriate inquiry was how the parties behaved and whether the conduct was violent, abusive or otherwise relevant to future welfare decisions. Conduct falling short of rape may still be profoundly abusive.
4. The absence of proof of rape produced no more than a binary finding that the allegation was not established. It did not inexorably establish that the mother had lied or that the allegation was false.
5. The slider finding was varied by removing the ancillary conclusion that the conduct constituted reasonable chastisement. The rape finding was set aside in full. The father’s application under the Children Act 1989 was remitted to the Family Court in Nottingham for further case management, including consideration of whether and how the sexual-assault allegation should be retried.

• High Court (Family Division): appeal allowed. The slider finding was retained in narrative form but stripped of the reasonable-chastisement conclusion; the rape finding was set aside. The father’s application was remitted for further case management.
• Family Court sitting in Nottingham: the Recorder found three instances of striking with a slider but characterised them as reasonable chastisement, and found the allegation of rape not proven.