A (A Child) (Appeal: Finding of Rape), Re

An appellate court should not interfere with findings of fact, including evaluations and inferences, unless compelled to do so. However, the protection afforded to first-instance findings is not absolute. A trial judge must evaluate the material evidence as a whole and explain why significant evidence is accepted or rejected. Evidence must not be considered in separate compartments where its significance depends on its relationship with other evidence. A failure to undertake that holistic evaluation, to address material factors, or to explain the reasoning may justify setting aside a finding even where the appellate court cannot conclude that the finding was necessarily wrong.

This was an appeal by the father against findings made by Mr Recorder Stables in private law proceedings concerning two children. The principal challenge concerned a finding that the father had raped the mother while she was asleep. The Recorder had also found that the father was the biological father of the younger child and that the mother had acted maliciously and controllingly in relation to paternity and contact.

The father argued that the rape finding had not been assessed in the context of those other findings and the surrounding evidence. Permission was granted on limited grounds concerning the treatment of paternity, the continuation of the relationship and the mother’s conduct.

1. Appeal allowed. The finding of rape could not stand. The case was remitted for a rehearing of the fact-finding before another judge.
2. The court adopted the summary of the law in F v M [2025] EWHC 1279 (Fam), including the principles derived from Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 and Volpi v Volpi [2022] EWCA Civ 464. An appellate court must not interfere with findings of fact, evaluations or inferences unless compelled to do so. It must ordinarily assume that the trial judge considered the whole of the evidence, and must avoid narrow textual analysis of the judgment.
3. That restraint did not protect the Recorder’s decision in this case. A judgment must identify the issues and legal tests, evaluate the evidence as a whole, explain the weight given to significant evidence, and give reasons for preferring one outcome over another. The court relied on the guidance concerning judgment structure and explanation in Re B (A Child) (Placement Order: Adequacy of Reasons) [2002] EWCA Civ 407 [2022] 4 WLR 42.
4. The Recorder considered the rape allegation in a linear and compartmentalised manner. He focused on the mother’s consistency and the messages sent the following morning, and rejected the father’s explanation for those messages. He did not, however, evaluate the rape allegation alongside the findings concerning the younger child’s paternity, the circumstances in which the allegation was made, the mother’s previous allegations, the malicious denial of paternity, and the controlling conduct concerning contact.
5. The court applied the principle in Re T (Children) [2004] EWCA Civ 558 that evidence cannot be evaluated in separate compartments and that the court must maintain an overview of the totality of the evidence. The Recorder’s statement that he had considered all the evidence did not cure the absence of any holistic analysis. The error was one of reasoning and method, not a conclusion that the rape finding was necessarily wrong.

• High Court (Family Division): Appeal from findings made by Mr Recorder Stables in the Family Court at Newcastle-upon-Tyne. Appeal allowed on Grounds 3–5 and fact-finding remitted for rehearing before another judge.