A (Appeal: Findings of Fact), Re

In a family fact-finding appeal, allegations of rape or sexual assault must be evaluated as facts, including whether sexual intercourse was consensual, forced or submitted to. Criminal-law labels and elements must not replace the Family Court’s task of determining what happened and how behaviour bears on children’s welfare. A fact-finding hearing must be selective and proportionate, addressing only allegations likely to be relevant to a welfare decision. A judge must provide sufficient evaluation and explanation to show why significant evidence has been accepted or rejected and to enable effective appellate review. An appellate court may set aside findings that are rationally unsupportable.

Following a five-day fact-finding hearing in the Bromley Family Court, a Recorder made findings concerning coercive and controlling behaviour and found that the father had had sex with the mother on at least one occasion knowing that she did not consent, or not caring that she said no. The father sought permission to appeal on five grounds. Four alleged bias and procedural unfairness. The fifth challenged the rape finding for lack of clarity and cogent reasoning. The four other grounds were dismissed as unarguable. The central issue was whether the Recorder’s reasoning and evaluation of the sexual allegations were sufficient and sustainable on appeal.

1. Appeal allowed in part. Four grounds alleging bias and procedural unfairness were dismissed as unarguable. The finding concerning rape was set aside because the analysis was abstruse, inconsistent and ambiguous, and the conclusion was rationally unsupportable.
2. An appellate court must respect findings of fact, including evaluative findings and inferences, unless the trial judge was plainly wrong or the conclusion was rationally unsupportable. A judgment should not be subjected to narrow textual analysis, but it must contain enough evaluation and explanation to identify why significant evidence was accepted or rejected and to permit appellate review.
3. The Recorder was entitled, and required, to determine factual questions bearing on whether the sexual conduct was consensual, forced or involved submission. Those questions were not displaced by the warning against importing criminal-law concepts into family fact-finding. The finding that the mother submitted because she did not want to wake the children did not clearly resolve whether the intercourse was consensual, and the judgment did not provide the necessary qualitative analysis of the evidence.
4. The Family Court’s purpose is to determine past behaviour and its relevance to children’s welfare, rather than to impose criminal convictions or acquittals by applying the strict elements of criminal offences. Conduct falling short of the legal definition of rape may nevertheless be profoundly abusive and relevant.
5. Fact-finding must be linked specifically to matters likely to affect the welfare decision. The fact that domestic abuse is raised does not justify trying every historical allegation. Courts must identify which allegations require determination, bearing in mind proportionality, delay, judicial continuity and the welfare consequences of protracted litigation.
6. The Recorder’s wider findings of controlling behaviour remained unimpeached, and setting aside the rape finding was unlikely to affect the final welfare outcome.

• High Court (Family Division): The Recorder’s fact-finding decision following the hearing concluded on 25 March 2022 was challenged. Four grounds were dismissed as unarguable; the finding concerning rape was set aside.