Joanna Thom and Harrison Engler represented a father pro bono in his successful High Court appeal against a factual finding made in the Family Court in Children Act 1989 proceedings that he raped the mother.
Rather unusually, the fact-finding hearing at which the rape finding had been made concluded 3 years ago. The court was responsible for the significant delay in hearing the appeal.
Moreover, a final welfare hearing concerning the 3 children had occurred in the meantime. The High Court noted the difficulty of overturning findings of fact on appeal.
The case was referred to Joanna and Harrison by Advocate.
Significance of the judgment in Re A (Appeal: Findings of Fact) [2025] EWHC 1279 (Fam)
In his judgment, Mr Justice Hayden gives important guidance on procedural and substantive aspects of private law fact-findings.
Procedure: case management, judicial continuity, selection of allegations
At [12], Hayden J criticised the “striking lack of constructive case management or any real endeavour to marshal or hone the case into a coherent structure”. There had been a lack of judicial continuity and little effort to “pare down the maelstrom of allegations”.
Hayden J reminds practitioners and the courts at [13] that “Efficient and proportional case management, strict adherence to Orders, and judicial continuity should not be regarded as merely aspirational, they are essential”. Indeed, judicial continuity is “itself a facet of child protection”.
He went on at [41] – [42] to provide important guidance on selecting allegations to consider at a fact-finding:
when the Court has decided that domestic abuse allegations are relevant to determining the welfare of the child, it must then consider and sift out which of the allegations are likely to be relevant and, it follows, which are not. The question is a specific, not a generic one. The decision to conduct a fact-finding hearing, in respect of domestic abuse, does not automatically open a floodgate to a litany of allegations which may be years old. That is simply not the purpose of the Children Act proceedings. The investigations require to be linked, inextricably and exclusively, to those matters which are required to determine the children’s welfare…
the decision as to what findings are sought needs to be taken with reference to the key criteria, namely how the findings are “likely to be relevant to any decision of the court relating to the welfare of the child”. The process of identifying those findings is therefore a selective one. Perhaps counterintuitively to Family practitioners, this process may result in a conclusion that a serious allegation by one of the parties does not need to be tried because it is simply not going to have a bearing on the ultimate welfare outcome. Further, the case law shows that litigating allegations which have become uncoupled from any link with the welfare of the child, can sometimes be both counterproductive and contrary to the child’s best interests.”
Hayden J also hints at guidance to judges when commenting it was “ambitious” for the Recorder to deliver an ex-tempore judgment at the conclusion of a five-day fact-finding hearing [17].
The correct approach to rape allegations
Hayden J provides important clarification as to the court’s approach to allegations of rape.
Discussing Re R (Children) (Care Proceedings: Fact-Finding Hearing) [2018] EWCA Civ 198, he confirms that “whilst concepts from the criminal law” should not be imported into family cases, that does not mean the court can ignore the question of whether a sexual act was consensual. At [25] he states:
“Whilst the cross-contamination of criminal and family law in a fact-finding hearing is “fundamentally wrong”, this cannot mean that a judge in a Family case is not required to consider whether a victim was “forced” into sexual intercourse or whether they “submitted”, or indeed whether they were “raped”. Whilst the word rape is a word defined by law, it must be remembered that it has a separate life in ordinary language where it exists as an everyday word. These are not “concepts from the criminal law” as the Recorder termed it, but facts which required determination. Whether the sexual act is “consensual” is an important finding of fact (i.e. not law) which cannot logically be avoided, and which has significant consequences one way or the other. Indeed, it is central to the evidence on this particular allegation.”
Background to the proceedings and the appeal itself
The parties married in 2008 and separated in July 2017.
From then on there was almost continuous litigation, during which time allegations were raised and re-raised.
By the time of the fact-finding in 2022 there were more than 70 allegations and the case had been heard by 9 different judges.
Hayden J concludes that the Recorder who heard the fact-finding hearing erred in making findings that were “ambivalent in identifying whether the sex was consensual” [27] and failed to provide a “qualitative analysis” of the evidence or sufficient reasoning to underpin the finding The court concluded that the Recorder’s analysis on the rape allegation was “abstruse, inconsistent, and ambiguous” [37] and were therefore “rationally unsupportable” and had to be set aside [43].
In his judgment, Mr Justice Hayden praised Joanna and Harrison’s representation, stating at [15]:
“The father is very fortunate to have their services. They described themselves as co-counsel, dividing submissions between them, which were presented succinctly and effectively. In this area of work, where legal aid is no longer broadly available, the Bar makes a critical contribution to access to justice, through its pro bono work. This hearing is an example of the importance of that contribution. Mr Engler and Ms Thom have filleted F’s own discursive and frequently misconceived written arguments and recrafted them skilfully. I have found their help to be invaluable”.
Read the judgment in full in Re A (Appeal: Findings of fact) [2025] EWHC 1279 (Fam)