The Honourable
Mr
Justice Cobb:
Introduction
- This is an
appeal
brought by a
father
('
F')
against a determination of
fact
made
by Her Honour Judge Scully (hereafter "the Judge"), at the conclusion of a
fact-finding
hearing which she conducted, in Children Act 1989 private law proceedings, in
May
2019. The proceedings concern the parties' two-year old child, N.
- By his
appeal,
F
challenges the
following
judicial
finding:
"On [date] 2016, at the
father's
property, an act of sexual intercourse commenced between the parties, to which they were both in agreement. At some point during intercourse, the
mother
changed her
mind,
whether because of discomfort or the
fear
of ejaculation or both. The
mother
told the
father
to stop and not to ejaculate inside of her. I
find
that he did not do so, and by then the sexual act had ceased to be consensual. In
failing
to stop and
failing
to withdraw before ejaculation against her wishes, by the definition in the Act, the
father
perpetrated a rape upon the
mother."
The "Act" referred to in the
final
sentence of the Judge's
finding
above is a reference to the Sexual Offences Act 2003.
- By the Appellant's Notice,
F
presents altogether nine Grounds of
Appeal,
which in combination seek to challenge the
finding
that he "raped" the
mother.
- Permission to
appeal
was granted, on the papers, by Cohen J on 29 October 2019; he considered that
F's
case was arguable, reasoning his decision thus:
"…
(2) The Judge's essential
finding
is that the [
F]
ejaculated whilst having consensual intercourse with [
M]
when he knew that she did not want him to ejaculate as she was not taking contraceptive precautions. He thereby raped her.
(3) [
F]s
evidence is that he intended to withdraw in time but
misjudged
things. The Judge
made
no
finding
that this was other than accidental.
(4) Sections 1 and 79(2) of the Sexual Offences Act 2003 define rape but commentary in Archbold at para.20.23 is suggestive that rape only occurs in such situations when the
man
intends to ejaculate inside the woman despite her objection.
…"
I point up at this stage because it is important (I return to this at [17] below) that, contrary to Cohen J's reprise of the "essential
finding"
in his point (2) above, at the time the
father
ejaculated, the intercourse had on the Judge's
finding
"ceased to be consensual".
F's
application
for
permission to
appeal
was, as it happens, issued out of time (
FPR
2010 rule 30.4(2)). Although Cohen J did not explicitly grant
F
permission to
appeal
out of time, I have been prepared to hear the
appeal;
I understand that
F
had experienced some difficulties in obtaining the judgment transcript before he could
finalise
his
appeal
documents.
F
has presented his argument on
appeal
in person, and has done so with care and clarity.
Ms
Brissenden, who conducted the hearing before the Judge on behalf of
M,
has appeared again on this
appeal
on her behalf.
The
fact-finding
hearing
- The
fact-finding
hearing conducted by HHJ Scully was itself a re-hearing,
following
a successful
appeal
by the
mother
against determinations
made
by a district judge in the
Family
Court sitting at Newcastle, itself
following
a
fact-finding
hearing.
For
the purposes of the hearing under review now, the Judge heard evidence
from
the parties themselves; she had read an extensive print-out of the sequence of text and WhatsApp
messages
passing between the parties over
many
months;
she had
viewed
the Achieving Best Evidence interview of
M,
and she had listened to the audio recording of the police interview of
F.
She had reviewed the police disclosure, although she described this as "poor and … incomplete".
- The
fact-finding
hearing was set up as a necessary prelude to a welfare determination in the context of
F's
application
for
a Child Arrangements ('spend time with') Order (section 8 Children Act 1989). The specific issue of
fact
to be determined was whether the act of sexual intercourse between
F
and
M
in 2016 had been an assault; integral to this question was whether the sexual act had been consensual or not. The child who is the subject of the proceedings was born as a result of the act of sexual intercourse which was at the centre of the Judge's
finding.
- The ultimate issue before the
Family
Court in this case will be the
future
contact arrangements
for
F
and the child, N, in N's best interests. Given the allegation in this case, there was clearly an issue as to whether
F
would be likely to provide safe parenting to N.
- Let
me
say at once that I am satisfied that it was entirely proper
for
F
to have launched his
appeal
against the
fact-finding
outcome at this stage rather than waiting
for
a
final
order in the Children Act 1989 proceedings; the
finding
under challenge directly "concern[s] the issue upon which the determination of the whole case ultimately turns": see the judgment of
Macur
LJ at [21] in Re
M
[2013] EWCA Civ 1170 and Dame Elizabeth Butler Sloss P in Re B (A Child) (Split Hearings: Jurisdiction) [2000] 1
FCR
297, [2000] 1
FLR
334, CA.
Background
facts
- The outline
facts
can be collected
from
the judgment, and I summarise them briefly here. The
mother
met
the
father
at a
fast-food
outlet in Newcastle, where he worked. In the days which
followed
their
meeting
they exchanged text (SMS) and WhatsApp
messages.
F
invited
M
to his home
for
a
meal.
Text exchanges at the time suggested that this
may
develop into a "sex session".
M
indeed went to
F's
home as arranged.
F
cooked a
meal.
M
ate little. It is common ground that after the
meal
F
and
M
had sexual intercourse.
M's
case before the Judge was that after a short time engaged in the sexual act, she told
F
that she did not want to continue; the Judge recorded that the
mother
had said "stop, stop, stop, stop", and later (when he continued undeterred) that she did not want him to ejaculate inside her.
F,
for
his part, denied that
M
had ever asked him to 'stop' while engaged in sex; his case is that prior to the initiation of sexual intercourse they had agreed that he would not ejaculate inside her
vagina,
but that otherwise
M
said nothing during the act of sex. It is of course accepted that
F
did ejaculate inside
M's
vagina.
M's
case was that the couple went on to engage in penetrative sex (though not to orgasm) at least once or possibly twice
more;
the
mother's
case was that it was "consensual in that she had not said no, as she did not see that there was any point" (per judgment). Curiously,
F
denies that the parties had sexual intercourse
more
than once.
Following
the
mother's
visit
to the
father,
the couple continued to contact each other by SMS / WhatsApp. The Judge reviewed those
messages
in her judgment, noting that on the same day as the sexual encounter there was a
message
from
M
to
F,
which reads; "the
fact
that I asked you to stop several times and you didn't listen when I said 'don't come inside
me'".
Later text
messaging
includes
M
saying "I told you I didn't want to; I told you to stop; I told you not to come in
me
…", and shortly after N was born "when a girl says 'no, stop' don't do something, you should respect her, not do what you did…". Other
messaging
between the parties contained a range of discussions
focusing
on practical and domestic arrangements
for
the child,
financial
maintenance,
and contact.
- It should be noted that
F
has not been charged with any offence arising
from
the events surrounding the parties' sexual encounter.
The Arguments on
appeal
F
contends that the
finding
of rape is unsound and should be set aside. He complains that the Judge had
failed
to consider adequately or at all the inconsistencies in
M's
accounts of the events in question (when comparing her accounts to the court and in the Achieving Best Evidence interview), and in particular the oddity of her case (which as I say he denies) that they had gone on to
further
sexual activity after the alleged rape. He submitted to
me
in oral argument at this
appeal
hearing that
M's
case "does not add up".
F's
case was and is that
M
had consented throughout the sexual intercourse; he
maintained
before the Judge that ejaculating inside the
mother
was "an accident" and complains that the Judge
made
no determination of whether he had accidentally or intentionally ejaculated inside the
mother.
Specifically, in this regard he submitted (both in writing and orally at the
appeal),
reliant I believe on the comment of Cohen J
from
the order granting permission:
"By
virtue
of the Sexual Offences Act 2013 (sic.) by which [the Judge] based her judgment on (sic.), ejaculation could never translate to a rape."
Ms
Brissenden contends that the
finding
is unassailable. She contends that the Judge has considered all relevant
matters
and that she was entitled on the evidence to reach the
finding
that
F
had "raped"
M.
Ms
Brissenden argues that the Judge's clear
finding
that
M
had told
F
to "stop" part-way through sexual intercourse
materially
converted the consensual activity into non-consensual activity; she relied on the
fact
that rape is defined as the intentional penetration of the
vagina
without consent (and where the person does not reasonably believe that the other consents) and that, importantly, "penetration is a continuing act
from
entry to withdrawal" (section 79(2) Sexual Offences Act 2003). She submits that the evidence concerning
F's
ejaculation was not in
fact
relevant to the
finding
of rape, and that in granting permission to
appeal,
Cohen J
must
have
misread
or
misinterpreted
the Judge's judgment in this regard; she points out that Cohen J had apparently read the judgment as indicating that at the point of ejaculation the sexual activity was otherwise 'consensual' whereas the Judge's conclusion was that at that time, the sexual activity had "ceased to be consensual" (see [2] above).
Discussion
- Without, I believe, diminishing the scope or
force
of the
F's
arguments, I distil
F's
grounds of
appeal
into two essential complaints:
i) That the Judge was wrong to
find
as a
fact
on the evidence that the sexual intercourse was other than consensual; her
finding
was contrary to the weight of the evidence and
fails
to reflect the inconsistencies in
M's
accounts;
ii) That the Judge was wrong to describe the act as 'rape' because
F
had only accidentally, not intentionally, ejaculated inside
M's
vagina.
I address these points discretely below.
Appeal
against the
finding
of
fact
Appeals
against
findings
of
fact
are notoriously difficult. As an appellate court I would only be able to say that the Judge who has conducted a
fact-finding
exercise had erred
materially
if the answer was "demonstrably contrary to the weight of the evidence" or the "decision-
making
process can be identified as being plainly defective so that it can be said that the
findings
in question are unsafe" (see
Mostyn
J at NG
v
SG (
Appeal:
Non-Disclosure) [2012] 1
FLR
1211).
Moreover,
the
fact-finding
Judge here has had a considerable advantage over
me
in seeing and hearing these parties give their evidence: see Piglowska
v
Piglowski [1999] UKHL 27, [1999] 3 All ER 632, [1999] 1 WLR 1630, and Biogen Inc
v
Medeva
plc [1997] RPC 1, discussed
further
in Re A (Children) [2015] EWCA Civ 1254 (see in particular Lewison LJ at [37-40]). It is apparent
from
the judgment that the Judge plainly
formed
mixed
views
of the reliability and truthfulness of both parties, which she properly set out in her judgment and apparently weighed in reaching her
final
conclusion.
- In this regard, it is notable that the Judge broadly accepted, as
F
contends in this
appeal,
that in some respects
M
had been an unsatisfactory witness; the Judge explicitly records "I am unable to agree that she has been entirely honest and
frank
with the court or indeed with the police". The Judge rejected
M's
evidence about when she
first
knew what rape was (i.e.
more
than a year after this incident;
M
had said that she had previously assumed that rape was always associated with threats or
violence).
The Judge recognised that she
found
aspects of
M's
evidence difficult to reconcile, and highlighted its
various
internal inconsistencies. The Judge
found
that it was surprising that
M
had alleged, somewhat against her own interests, that there had been a second or third sexual act (i.e. after the rape) which
F
denied. The Judge
fairly
recorded that "[
M]
really has nothing to gain by admitting that there was a second sexual event" and recorded that in admitting this
further
event, in
fact
it somewhat "adds to her credibility".
- The Judge concluded that the
father,
too, was not telling the truth in his account of the incident that day, and in other respects his evidence was "confusing".
- These important points were plainly weighed in the balance in reaching her
final
determination. The Judge had earlier given herself an appropriate direction under R
v
Lucas; R
v
Middleton
[1981] QB 720. The Judge also directed herself appropriately as to the burden and standard of proof.
- I am satisfied that the Judge carefully evaluated the evidence laid before her. The judgment is detailed and thorough. Having
focused
on the evidence specific to the act of sexual intercourse, the Judge analysed thoroughly the contextual evidence, including the communications between the parties,
for
some indicators of the truth. The Judge was, it appears, particularly struck by the consistency of
M's
repeated references over a period of time (in SMS/WhatsApp
messages)
to the
fact
that she had pleaded with
F
to 'stop' when they were engaged in sexual intercourse. She was equally unimpressed with
F's
denial of this. While acknowledging that "the Court will never know precisely what took place in [
F]s
bedroom on [date], only the parents know that", she reached conclusions which, in
my
judgment, corresponded with a strong consistent strand of the evidence.
The Judge was wrong to describe the act as 'rape'
- The crucial part of the
finding
under challenge is this sentence:
"In
failing
to stop and
failing
to withdraw before ejaculation against her wishes, by the definition in the Act, the
father
perpetrated a rape upon the
mother."
The
finding
is, arguably, slightly unfortunately worded. Inadvertently the Judge
may
have given the impression that she was relying on the
fact
that
F
ejaculated inside
M's
vagina
as part of the proof of rape. This, it appears, caused Cohen J, when considering the grounds of
appeal,
to draw attention to an editorial note
from
Archbold's Criminal Pleading Evidence and Practice 2020, in the context of section 74 of the Sexual Offences Act 2003 ("a person consents if he agrees by choice, and has the
freedom
and capacity to
make
that choice"), which reads as
follows:
"… the "
freedom"
to
make
any particular choice
must
be approached in a broad common sense way; where, therefore, a woman consents to penetration on the clear understanding that the
man
will not ejaculate within her
vagina,
if, before penetration begins, the
man
has
made
up his
mind
that he will ejaculate before withdrawal, or even, because "penetration is a continuing act
from
entry to withdrawal" (section 79(2)), decides, after penetration has commenced, that he will not withdraw before ejaculation, just because he deems the woman subservient to his control, she will have been deprived of choice relating to the crucial
feature
on which her original consent was based, and her consent will accordingly be negated."
- As earlier indicated (see [16] above)
F
has adopted this argument at the hearing of the
appeal
before
me.
- On
my
reading of the relevant annotation (reproduced in [25] above), the woman's consent will be negated if her consent to sexual intercourse has been conditional on there being no ejaculation and the
man
has
made
up his
mind
either before, or during the act of penetration, to ejaculate inside the woman. In this case, the Judge's conclusion that
M
had been raped did not, however, depend upon a
finding
that the
M
had given conditional consent to penetration (i.e. "on the clear understanding that the
man
will not ejaculate within her
vagina"
but that
F
had
made
up his
mind
to do so). The Judge's conclusion was
founded
on the
fact
that part-way through the sexual act,
M
ceased to consent to the act ('stop, stop…') and had
made
this known to
F
by requesting that he 'stop'. It is therefore not
material
to her
finding
of rape that there had been any discussion about ejaculation before the act of sexual intercourse (if there had been), nor that
F
had in
fact
ejaculated inside
M's
vagina.
In short, as soon as
M
had withdrawn her consent to the sexual intercourse during the act,
F's
continued penetration of her became a serious sexual assault, which in the criminal law would, within the
meaning
of the Sexual Offences Act 2003, be rape.
- The Judge had, at an early part of the judgment, properly recognised the difference between the role of a
family
court and that of a criminal court; she had nonetheless looked across at the statutory definitions of the offence of rape under the Sexual Offences Act 2003 in assisting her to
form
or test her conclusion (specifically section 1, section 74, and specifically section 79(2)). The issue of consent, one of the necessary ingredients in determination of the offence, was – at the permission to
appeal
stage – given
further
prominence by Cohen J. This was in turn picked up and repeated by
F
in his skeleton argument and in oral argument before
me,
and he, like Cohen J drew attention to the editor's narrative note
from
Archbold (see [25] above).
- There is a risk in a case such as this, where the alleged conduct at the heart of the
fact-finding
enquiry is, or could be, of a criminal nature,
for
the
family
court to become too distracted by criminal law concepts. Although the
family
court
may
be tempted to consider the ingredients of an offence, and any defence available, when considering conduct which
may
also represent an offence, it is not of course directly concerned with the prosecution of crime. On the contrary:
"In
family
proceedings, the outcome of a
fact-finding
hearing will normally be a narrative account of what the court has determined (on the balance of probabilities) has happened in the lives of a number of people and, often, over a significant period of time. The primary purpose of the
family
process is to determine, as best that
may
be done, what has gone on in the past, so that that knowledge
may
inform the ultimate welfare evaluation where the court will choose which option is best
for
a child with the court's eyes open to such risks as the
factual
determination
may
have established." Re R [2018] EWCA Civ 198 at [62]
Quite irrespective, therefore, of whether
F
has committed the offence of 'rape' or is otherwise criminally culpable, there is a range of reasons why the circumstances of N's conception
may
ultimately be relevant to
future
child arrangements. Specifically, it was regarded at an earlier case
management
hearing (and I agree with this direction) that it would be important
for
there to be a determination of whether
F's
conduct towards
M
in the sexual act by which N was conceived was '
violent
or abusive', and in turn whether that conduct would be likely to be relevant in deciding whether to
make
a child arrangements order (see PD12J
FPR
2010, para.4, para.5, and see
further
para.7 [i.e. does the statutory presumption apply having regard to any incident of domestic abuse?]).
- In this regard, it
may
be a timely opportunity to revisit what the Court of
Appeal
said in Re R [2018] EWCA Civ 198. This was a case in which all parties before the court readily accepted that the structure and substance of criminal law should not be applied in the
Family
Court, a
view
with which the
majority
of the Court of
Appeal
agreed.
McFarlane
LJ said at [65-67]:
"[65] … criminal law concepts, such as the elements needed to establish guilt of a particular crime or a defence, have neither relevance nor
function
within a process of
fact-finding
in the
Family
Court. Given the wider range of evidence that is admissible in
family
proceedings and, importantly, the lower standard of proof, it is at best
meaningless
for
the
Family
Court to
make
a
finding
of '
murder'
or '
manslaughter'
or 'unlawful killing'. …
[66]. Looked at
from
another angle, if the
Family
Court were required to deploy the criminal law directly into its analysis of the evidence at a
fact-finding
hearing such as this, the potential
for
the process to become unnecessarily bogged down in legal technicality is also plain to see. In the present case, the judge's detailed self-direction on the law of self-defence, and the resulting
appeal
asserting that it was
misapplied,
together with
Miss
Venters'
late but sound observations about the statutory defence of 'loss of self-control', are but two examples of the
manner
in which proceedings could easily become over-complicated and side-tracked
from
the central task of simply deciding what has happened and what is the best
future
course
for
a child. It is also likely that the judges chosen to sit on such cases in the
Family
Court would inevitably need to be competent to sit in the criminal jurisdiction.
[67] … it is
fundamentally
wrong
for
the
Family
Court to be drawn into an analysis of
factual
evidence in proceedings relating to the welfare of children based upon criminal law principles and concepts. As
my
Lord, Hickinbottom LJ, observed during submissions, 'what
matters
in a
fact-finding
hearing are the
findings
of
fact'.
Whilst it
may
not infrequently be the case that the
Family
Court
may
be called upon to re-hear evidence that has already been considered in the different context of a criminal prosecution, that evidence comes to the court simply as evidence and it
falls
to be evaluated, in accordance with the civil standard of proof, and set against whatever other evidence there
may
be (whether heard by the criminal court or not)
for
the sole purpose of determining the relevant
facts."
Conclusion
- Having heard, read and considered the arguments on this
appeal
carefully, I am satisfied that
i) The Judge's
finding
which I have set out at [2] above was not "demonstrably contrary to the weight of the evidence" (see [19] above); on the contrary, it seems to
me
that the Judge was amply entitled on the evidence to reach the conclusion that the sexual intercourse between
M
and
F
in 2016 became non-consensual and therefore a serious sexual assault;
ii) There is nothing in the Judge's decision-
making
process which can be identified as "plainly defective so that it can be said that the
findings
in question are unsafe" (see [19] above); indeed, I am satisfied that the Judge appropriately reviewed all of the available
material,
and
faithfully
recorded in her judgment all of the points
for
and against her ultimate conclusion;
iii) It was in
fact
immaterial to the Judge's conclusion, or the identification of potential
future
risk, whether
F
had or had not ejaculated inside
M's
vagina,
given that
M
had objected to
F's
continued penetration of her;
F's
focus
on that issue in the
appeal
was in
my
judgment
misplaced;
iv)
F
had perpetrated a serious sexual assault on
M.
While there are powerful reasons why in the
family
court the Judge's description of events and behaviour should not strongly adhere to criminal law concepts and language (see [29]/[30] above),
F
has
failed
in this
appeal
to persuade
me
that the judge was wrong to refer to the assault, by reference to the Sexual Offences Act 2003, as 'rape'.
- In the circumstances, the
appeal
must
be dismissed.
- That is
my judgment.