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

The Appellant father argues that the likely date of conception of A was such that it undermined the mother’s case that the parties separated the day after the rape. Therefore, it is said, her credibility on the rape allegation ought to be brought into question. He also argues that the learned Recorder erred by failing to consider the allegation of rape in the context of the findings that the mother had restricted contact arrangements without good reason. It is argued that Recorder Stables failed to factor into his decision making that the mother had contrived allegations to frustrate contact. The Appellant submitted that the finding that the mother had contrived allegations to frustrate contact and the allegation of rape, when viewed in their chronological context, are inconsistent. The mother has admitted to the police that she has lied to them about allegations that the father had raped other women. The father asserts that the mother did not want to support a prosecution against him for the allegation of rape she made because she knew that allegation of rape was also untrue. The father submits the court ought to have factored that in as a possibility when weighing the evidence as a whole rather than simply relying on the mother’s assertion that she had previously been too afraid to report the allegation.

On behalf of the mother, I am very properly and appropriately taken to the law relevant to appeals against findings of fact. It is submitted that the Recorder was clearly alive to the relevance of A’s paternity when considering the mother’s credibility. It is submitted that the Recorder provided an assessment of the mother as a witness at paragraph 19 of his judgment, and it is said that he clearly had his assessment in mind throughout his judgment, including when considering the allegation of rape. The judge did not make a specific finding about the date of A’s conception simply acknowledging the latitude around calculation of such dates – see paragraphs 30-31 and 34 of his judgment. It is argued that it does not follow that because the mother lied about the issue of paternity, she also lied about the rape. Further, it is said that even if the mother did lie about having sexual intercourse with the father after the date of the alleged rape that does not prove that he did not rape her. Many survivors of rape feel powerless to say no or are fearful of a reaction if they do refuse further contact with their rapist. Others do not wish to reveal what happened to them or even think about it because it is too painful to do so. Thus it is submitted nothing adverse can or should be drawn from a rape survivor continuing to have sexual relations with their rapist.

It is further submitted that at paragraph 138 the learned Recorder stated that I have considered all of the evidence relating to this allegation and the way it was given. This court is thus bound unless there is compelling reason to the contrary to assume that the judge did take the evidence as a whole in relation to the allegation of rape. The judge does not have to include a factual analysis on each and every issue in dispute in his judgment.

On behalf of the mother, it is submitted that there was ample evidence before the Recorder to discharge the burden of proof to the requisite standard in relation to the allegation of rape. The trial judge was uniquely placed to assess both parents evidence and clearly found the mother’s evidence more persuasive than the father’s evidence. I was properly reminded to avoid a narrow textual analysis of the Recorder’s judgment.

It is argued on behalf of the mother that the finding of rape and the findings that M’s claim that F is not the father of [A] is malicious, was made to prevent contact and inevitably will have caused both [A] and F emotional and psychological harm and that M has been very controlling over contact for non-child welfare reasons, and has chopped and changed the contact F has been allowed for no good reason, threatened F with the police unreasonably and is more recently motivated by a desire to deprive F and his family of all contact with [the older child] and [A], are not mutually inconsistent. Both can be true at the same time.