M v F & Anor

In fact-finding proceedings concerning alleged domestic abuse, the court must analyse the parties’ behaviour during the relevant events, considered in the evidence as a whole. It is insufficient merely to establish that sexual intercourse occurred or to focus decisively on whether the complainant later labelled the event as rape. The court must assess whether the conduct was abusive and potentially harmful, having regard to the individuals’ circumstances and vulnerabilities. A complainant’s uncertainty about the correct legal or ordinary-language label is relevant but cannot prevent a finding where the evidence otherwise supports one. Fact-finding must also be proportionate and directed to informing the child-welfare decision, rather than simply resolving disputes between the adults.

The father appealed against findings made by Recorder Shaw during long-running private law proceedings concerning the parties’ young child. The allegations included a specific allegation of rape, wider abusive sexual conduct, coercive and controlling behaviour, and emotional abuse. The Recorder rejected the rape allegation and the wider allegation of sexual activity against the mother’s will. The appeal challenged the adequacy of the reasoning, particularly the failure to engage with the mother’s first-hand account of the incident and the emphasis placed on her subsequent uncertainty about whether it amounted to rape.

The central issues were whether the fact-finding analysis properly addressed the parties’ conduct during the sexual activity and whether any further fact-finding was necessary for the child’s welfare determination.

1. Appeal allowed. The Recorder’s findings concerning the alleged rape and wider abusive sexual conduct could not stand. The case was remitted for reallocation to a fresh judge.
2. The question was not simply whether the parties had sexual intercourse. The court had to examine how they behaved during the intercourse, including the mother’s account that she expressed unwillingness and asked the father to stop, together with the father’s evidence about what occurred. The Recorder failed to engage directly with those accounts.
3. The court must assess whether the conduct was abusive, irrespective of whether it can ultimately be categorised as rape or sexual assault. The legal label remains important, but it is not the end of the analysis. The court must consider the evidence as a whole and the particular circumstances and vulnerabilities of the individuals involved.
4. The Recorder placed excessive weight on the mother’s conversations after the incident, including her uncertainty about whether it was rape. That was a relevant factor, but treating it as preventing a finding of rape was an unsound method of analysis.
5. The wider allegation of abusive sexual activity was dealt with in only a few lines, despite its significance to the case. That analysis was inadequate for similar reasons.
6. Fact-finding is undertaken to inform the ultimate welfare determination concerning the child’s future relationship with her father. It must not be used merely to resolve issues between the adults. The fresh judge was therefore to consider promptly whether any further fact-finding was necessary, and, if so, to undertake it.

An expedited transcript was directed for the local court.

1. High Court (Family Division): appeal from findings made by Recorder Shaw allowed; the case was directed to be reallocated to a fresh judge.