F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) (21 November 2019)

F v M (Appeal: Finding of Fact) [2019] EWHC 3177 (Fam) (21 November 2019)

The judge was entitled on the evidence to find that consent was withdrawn during intercourse, making continued penetration a serious sexual assault. The description of the act as 'rape' was not demonstrably contrary to the evidence or unsafe, and the focus on ejaculation was immaterial to the finding.

Source-derived case information.

Citation
[2019] EWHC 3177 (Fam)
Parties
Appellant: F; Respondent: M
Jurisdiction
England and Wales
Judgment Date
21 November 2019
Procedural Posture
Children Act 1989 Private Law Appeal / Appeal Against Fact Finding Determination
Outcome
Appeal dismissed
Legal Topics
Consent in Sexual Intercourse, Fact Finding Hearings, Child Arrangements, Sexual Assault Allegations
Family Law Child Welfare Consent in Sexual Intercourse Fact Finding Hearings Child Arrangements Sexual Assault Allegations

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Summary, issues, holding and outcome

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Parties

F

Appellant

M

Respondent

Procedural Posture

Children Act 1989 Private Law Appeal / Appeal Against Fact Finding Determination

Legal Issues

  1. 1 Whether the judge erred in finding the sexual intercourse was non-consensual
  2. 2 Whether the judge was wrong to describe the act as 'rape' given the alleged accidental ejaculation

Ratio Decidendi

The judge was entitled on the evidence to find that consent was withdrawn during intercourse, making continued penetration a serious sexual assault. The description of the act as 'rape' was not demonstrably contrary to the evidence or unsafe, and the focus on ejaculation was immaterial to the finding.

Court Disposition

Appeal dismissed

Orders

  • The judge's finding stands; no change to the fact-finding determination.