F v M (Appeal: Finding of Fact)

Factual and Procedural Background

This appeal arises from a fact-finding hearing conducted by Her Honour Judge Scully in Children Act 1989 private law proceedings concerning the parties' two-year-old child. The father ("Appellant") challenges a judicial finding that during sexual intercourse in 2016 at the father's property, the mother withdrew consent partway through, but the father failed to stop and ejaculated inside her, constituting rape under the Sexual Offences Act 2003.

The fact-finding hearing was a re-hearing following a successful appeal by the mother against earlier determinations by a district judge. The Judge considered evidence from the parties, text and WhatsApp communications, an Achieving Best Evidence interview of the mother, and the father's police interview recording. The hearing was a necessary precursor to a welfare determination related to the father's application for a Child Arrangements Order regarding contact with the child.

The appeal permission was granted despite being out of time, acknowledging the arguability of the father's grounds. The father presented his appeal personally, and the mother was represented by counsel.

Background facts include that the mother and father met at the father's workplace and subsequently engaged in sexual intercourse at the father's home. The mother alleged she withdrew consent during intercourse and asked the father to stop and not to ejaculate inside her, which he denied. The father admitted ejaculating inside the mother. The mother claimed further sexual acts occurred subsequently, which the father denied. Text messages from the mother repeatedly stated she asked the father to stop and not to ejaculate inside her. The father has not been criminally charged in relation to these events.

Legal Issues Presented

1. Whether the Judge was correct in finding that the sexual intercourse between the parties ceased to be consensual partway through and that continuing penetration constituted rape under the Sexual Offences Act 2003.
2. Whether the Judge erred in characterizing the act as rape given the father's assertion that ejaculation inside the mother was accidental and not intentional.
3. Whether the Judge adequately considered inconsistencies in the mother's evidence and the father's denial of withdrawal of consent.

Arguments of the Parties

Appellant's Arguments

• The finding of rape is unsound and should be set aside due to inconsistencies in the mother's accounts, especially regarding alleged subsequent sexual acts after the rape.
• The mother consented throughout the sexual intercourse; ejaculation inside the mother was accidental.
• The Judge failed to determine whether ejaculation was intentional or accidental.
• Relying on commentary in Archbold and the Sexual Offences Act 2003, ejaculation alone cannot constitute rape if it was accidental.

Appellee's Arguments

• The Judge's finding is unassailable and based on a thorough consideration of all evidence.
• The finding that the mother withdrew consent during intercourse and asked the father to stop converted the act into non-consensual penetration, constituting rape.
• Rape is defined as intentional penetration without consent, and penetration is a continuing act from entry to withdrawal under section 79(2) of the Sexual Offences Act 2003.
• The evidence of ejaculation was irrelevant to the finding of rape; the Judge correctly concluded that intercourse had ceased to be consensual before ejaculation occurred.
• Cohen J’s interpretation of the Judge’s finding was mistaken regarding the consensual nature of the act at ejaculation.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the difficulty of appeals against fact-finding, emphasizing the deference due to the trial judge who heard and saw the witnesses. The Judge had carefully weighed the evidence, including the parties' testimony, communications, and interviews, noting inconsistencies and assessing credibility. The Judge found both parties had elements of unreliability but accepted the mother’s repeated and consistent statements that she withdrew consent during intercourse and asked the father to stop.

The court distinguished the issue of ejaculation, concluding that the Judge’s finding of rape did not depend on whether ejaculation was intentional or accidental, nor on any prior agreement about ejaculation. Instead, the critical legal principle was that consent was withdrawn during the sexual act, and continued penetration after withdrawal of consent constitutes rape under the Sexual Offences Act 2003, particularly section 79(2) which defines penetration as a continuing act from entry to withdrawal.

The court discussed the risk of family courts becoming overly focused on criminal law concepts, affirming that the family court's fact-finding serves to inform welfare decisions rather than to prosecute crimes. The court agreed with the Judge’s approach to use the statutory definitions to understand the nature of the conduct for the welfare context.

Ultimately, the court found no material error in the Judge’s evaluation of evidence or legal characterization of the act as rape. The father's arguments regarding the accidental nature of ejaculation and inconsistencies in the mother’s evidence did not undermine the Judge’s conclusion that the sexual act became non-consensual.

Holding and Implications

The appeal is DISMISSED.

The court upheld the finding that the father committed a serious sexual assault constituting rape under the Sexual Offences Act 2003, based on the withdrawal of consent during intercourse and continued penetration. The decision confirms the appropriateness of the Judge’s fact-finding and legal reasoning within family proceedings. No new legal precedent was established; the ruling primarily affects the parties, supporting the factual basis for future child arrangements decisions regarding the safety and welfare of the child.