FA-2025-000024 - [2025] EWHC 1500 (Fam)

Fecha: 17-Jun-2025

Ms Justice Henke

Ms Justice Henke :

Introduction

This is an appeal against findings of facts made by Mr Recorder Stables in private law Children Act proceedings concerning two children. Within the proceedings, there was a dispute over the paternity of the younger child, A. That dispute is relevant to this appeal. The mother claimed another was A’s father. As part of the case management directions which preceded the fact-find, paternity testing in relation to A had been ordered; an order which was eventually backed by a penal notice. Nevertheless, the mother wilfully, as the Recorder found, failed to cooperate with that testing. Before Mr Recorder Stables it was the mother’s case that her relationship with the father ended when he raped her. She asserted that A had been conceived approximately two months after the relationship ended. However, the Learned Recorder found that the Appellant was the father of the younger child and accordingly made a declaration that the Appellant was their father pursuant to S55A Family Law Act 1986. The mother has not sought permission to appeal that finding or order. The appeal before me is brought by the father. It is an appeal against the following findings, namely:

That on 30.8.22 the father penetrated the mother’s vagina with his penis whilst she was asleep and that when she woke to find him having sexual intercourse with her, he told her “I thought I would wake you up with a nice surprise. The finding that F did not seem to realise at the time that he was doing anything wrong, and later told M that it was not rape as they were in a relationship.

In essence the father’s appeal is against the finding of rape; the rape which the mother asserts ended the relationship and pre-dated the conception of A by approximately 2 months.

The findings in relation to the rape are one of a number of findings made against the mother and the father by Recorder Sables in a judgment formally handed down on 14 January 2025. Based on those findings, Mr Recorder Stables made a case management order in which he directed a S7 report from CAFCASS and listed the welfare stage of the hearing before another judge on 23 April 2025.

The father made an application to stay that case management order pending this court’s consideration of the appeal. In particular, he sought a stay of the direction requiring the preparation of the S7 report. I considered the application for a stay on the papers on 10 February 2025. I granted the stay because I considered that there was a real risk of injustice if a stay was not granted. That risk arose because the findings made were of the utmost severity and would, if they stood, be reflected in any report when considering the need to safeguard the children in the future and when considering the impact on the mother of future contact between the children and the father. At the same time, I gave directions to enable me to consider the father’s application for permission to appeal.

I was able to consider the father’s application for permission to appeal on the papers on 18 March 2025. I granted permission on limited grounds, namely that the learned Recorder:

Ground 3- Failed to have sufficient regard, if at all, to the earlier finding that the Appellant father was the biological father of ‘A’ – the child, and that the parties must have had sexual intercourse sometime after the alleged rape, which conflicted with mothers evidence.

ii.

Ground 4- Further, failed to have sufficient regard, if at all, to the fact the relationship did continue, as above, and that factually the mother misled the court in her assertion she had ended the relationship immediately after the alleged rape.

iii.

Ground 5- Finding that mother controlled contact arrangements without reason and had maliciously called police to cause harm to the Appellant, resulting in the mother causing emotional and psychological harm to both children, yet failed to have sufficient regard to this history, if at all, and failed to balance the likelihood of the Appellant committing rape against mothers contrived allegations to frustrate contact.

I heard the appeal on 7 May 2025. At the appeal the father represented himself with the assistance of a McKenzie Friend. The mother was represented by Counsel. In order to determine this appeal, I had the benefit of focused and well-constructed oral arguments for both parties as well as skeleton arguments from each. I had an appeal bundle of 317 pages. During the appeal, the father referred to police disclosure which was not in the bundle before me but had been before the court below. With the agreement of the mother through her counsel, the police disclosure was placed before me for my consideration.