A (A Child), Re (Remitted Fact-Finding Hearing) [2025] EWFC 308 (B) (04 September 2025)

Neutral Citation Number: [2025] EWFC 308 (B) Case No: NE24P07024 IN THE FAMILY COURT AT NEWCASTLE Barras Bridge, NE1, Newcastle upon Tyne NE1 7PF 04/09/2025 B e f o r e : HIS HONOUR JUDGE STEPHEN SMITH ____________________ Between: Re A (A Child) (Remitted fact-finding hearing) ____________________ Ms J. Barnett (Direct Access) for the Applicant Ms G. Atkinson (instructed by MarstonHarbottle Solicitors) for the Respondent Hearing dates: 4 to 6 August 2025 Judgment circulated in draft: 7 August 2025 ____________________ HTML VERSION OF APPROVED JUDGMENT ____________________ Crown Copyright © ............................. HHJ STEPHEN SMITH HHJ Stephen Smith: I have given leave for this anonymised version of the judgment to be published. Although this judgment will be available online, it is vital that it is not published or referred to by any person (including the parties) in a way that will allow the identity of the parties to be revealed or implied. That includes posting this judgment (or a link to it) online in a way that would suggest a connection to the person making the post. Some identifying details have been changed or omitted, and consequential amendments made, in this public-facing version of the judgment. Principal controversial issue The principal controversial issue in this judgment is whether the mother in these child arrangements proceedings has established the following allegation to the balance of probabilities standard: "…on 30 August 2022, the respondent was woken up by the applicant raping her. He told her afterwards this was not rape as they were in a relationship." I conducted a fact-finding hearing to determine this issue from 4 to 6 August 2025. At the conclusion of the hearing, I informed the parties that I was satisfied that the mother had established that allegation and gave a short summary of my reasons. This judgment gives my detailed reasons for reaching that conclusion. Introduction and parties The court is concerned with the welfare of B, a boy born in late 2019, and A, a girl born in the summer of 2023. The applicant in these proceedings is the father. The respondent is the mother. I will refer to the parties as the father and mother, intending no discourtesy, and noting the mother's continued position concerning the father's disputed parentage of A, which is a matter to which I shall return. Procedural background By an application issued on 8 January 2024, the father applied for a child arrangements order in respect of his contact with the children, and specific issues orders relating to the names of both children. He also sought a declaration of his parentage of A. As set out below, it was determined that the father's application could not be resolved without a fact-finding hearing. A two-day fact-finding hearing before Recorder Stables took place in December 2024. Following a successful appeal to the High Court, a discrete aspect of the Recorder's judgment, namely the rape allegation referred to above, was set aside by the order of Henke J dated 17 June 2025, following which the matter was remitted to this court for that issue to be re-determined. Factual background The parties' relationship commenced in 2018 and lasted for approximately four years. B was born in 2019, and the couple separated at some point in 2022. A was born in the summer of 2023 (the precise date has been omitted from this version of the judgment). It is the mother's case that her relationship with the father ended on 30 August 2022 when the father engaged in nonconsensual sexual intercourse with her while she was sleeping. On her case, he had done so previously, and had subjected her to a catalogue of emotional and physical abuse. The mother contends that on 30 August 2022, she was woken by the father having sex with her, without her consent, while holding a bottle of baby oil. He told her that that is what people in relationships do. It is also the mother's case that because the relationship, and with it all sexual relations, ended on 30 August 2022, the father cannot be the father of A, given her date of birth. Her case is that conception must have taken place after the conclusion of her relationship with him. The mother says that A's father is her new partner, G. By an order dated 25 September 2024 DJ Temple directed that a fact-finding hearing was necessary in order to inform the welfare evaluation of the father's application. DJ Temple also directed the mother to make A available to Cafcass for mouth swab samples to be taken in order to allow DNA paternity testing to take place. The mother did not do so and has declined to comply with a number of orders made since to similar effect. The fact-finding hearing took place before Recorder Stables on 2 and 3 December 2024. Recorder Stables handed down a reserved judgment on 14 January 2025. He reached a range of findings concerning allegations each parent had made against the other. I will turn to the detail of those findings in due course; it is sufficient to observe at this juncture that, in broad terms, the Recorder found various of the allegations against each parent to be established, to differing extents. He found that the father was indeed A's father and made a declaration of parentage accordingly. He found that the mother had wilfully declined to make A available for DNA testing. He found that the mother had exaggerated parts of her evidence, but also found that the father was not a very persuasive witness. In his order accompanying the judgment, the Recorder directed Cafcass to prepare a report under section 7 of the Children Act 1989 taking into account his findings. One of the findings reached by the Recorder was to accept the mother's allegation that: "…on 30 August 2022, the respondent was woken up by the applicant raping her. He told her afterwards this was not rape as they were in a relationship." The father appealed against the above finding to the High Court. Permission to appeal against that finding was granted by Henke J, with permission refused on other grounds which sought to challenge the remaining findings. Henke J also issued a stay on the Recorder's directions to Cafcass. By a judgment dated 17 June 2025, Henke J allowed the father's appeal in relation to the grounds challenging the above finding, and remitted the proceedings to this court, for the fact-finding hearing to be re-conducted in relation to this allegation: see Re A (A Child) (Appeal: Finding of Rape) [2025] EWHC 1500 (Fam) . It is against that background that, in consultation with Mr Justice Poole, the Family Presiding Judge for the North Eastern Circuit, the matter was listed before me for this sole remaining disputed issue to be determined, namely the allegation set out at paragraph 1, above. In turn, that will inform the welfare stage of the proceedings. I summarised my findings to the parties at the conclusion of the remitted hearing, with full details to follow in this reserved judgment, which was circulated to the parties the following day. I gave directions for position statements in response and listed the matter for further directions on 4 September 2025, at which hearing the judgment was formally handed down. Factual context: the Recorder's unchallenged findings Recorder Stables reached a number of findings of fact which were adverse to both parties, and in relation to which there was no challenge (or no successful challenge, in the father's case) by either side on appeal. It was common ground at a directions hearing before me on 18 July 2025 that there was no basis for those unchallenged matters to be re-litigated. The order of Henke J dated 17 June 2025 did not seek to set aside those unchallenged findings specifically, or the judgment of the Recorder in its entirety, but rather allowed the appeal by the father on the discreet bases upon which he was granted permission to appeal, all of which challenged the rape findings. Accordingly, there are a series of unchallenged findings of fact within which my findings in this judgment must sit. Naturally, I have considered the entirety of the evidence – including the unchallenged findings of fact – in the round and did so before reaching my own findings of fact. I am grateful to Ms Atkinson for summarising the preserved findings of fact reached by the Recorder in her helpful Case Summary dated 31 July 2025. The preserved findings are as follows: "a. The court makes a finding on the available credible evidence, that G is the father of A (d.o.b. [omitted]). The court therefore declares that F is the father of A (pursuant to s.55A of the Family Law Act 1986). b. The Court finds that M's claim that F is not the father of A was malicious, was made to prevent contact, and inevitably will have caused both A and F emotional and psychological harm. c. The court finds that M regularly restricts F's contact with B for no reason causing emotional and psychological harm to both. d. The court finds that M encouraged the children to call F 'dad' in relation to A. M did not encourage the children to call any male other than F 'dad' in relation to B. e. The court finds that on 4.11.22 M physically abused F by punching him in the face with her fist causing a split lip and pushing him down the stairs of their flat. f. The court finds that M did not cause harm to B on 2.10.22 by putting him in a situation where he was harmed inadvertently by physical violence. g. In 2021 to 2022 there was verbal abuse in the form of mutual name calling during arguments, but this did not subject either party to emotional harm or control. In addition, F subjected M to emotional harm by referring to her as 'your fat mam' to B in M's earshot. h. The court finds that F did not repeatedly refuse to return B to M's care, and that B was not locked in a car in June/July 2020. i. The court finds that M inappropriately threatened F with the police after unreasonably curtailing contact on 5.2.23. j. The court finds F did not make threats to physically harm B. k. The court finds on the evidence that F did not threaten to commit suicide in order to control M as alleged. l. F's conduct on 24.2.22 in sending messages and attempting to call M was not obsessive and did not subject her to emotional harm or control. However, the two occasions on other dates in the period 2021 to 2022 when F sent disparaging messages and photos about himself (incl. the one at p94) were an attempt to emotionally control M. m. F caused M physical and emotional harm on 6.5.22 when B was not present. F in a fit of jealousy falsely accused M of having an affair with a neighbour, pinned her against the wall, then smashed a TV putting his elbow through it, removed a picture of them from the wall and ripped it up. He then threw M into the bathroom. The assault hurt M. F threatened to take her up the fell and said that no one would ever find her again. F later apologised and did say he would not harm M again. The court does not find that F smashed a second TV, said he would kill M, or told her to drown herself in the bath, nor did he cut up all the pictures of them in the house. n. The court finds that F has said to B 'go and be unhappy with your fat mam' and 'G's a bastard' which latter comment B later repeated to M. This did not cause B emotional harm. o. The court finds that F did not fail to provide B with his inhaler, and any breathing difficulties that B had were not caused by F's care of B." The law The parties prepared a summary of the law applicable to my consideration of these issues, which reflects the principles I have applied throughout my consideration of this matter. I set out below a summary of the key principles applicable to the issues in these proceedings below, and have, of course, ensured that all applicable principles were applied throughout my analysis in any event. Burden and standard of proof: it is for the party making an allegation to establish it to the balance of probabilities standard. The fact that an allegation is very serious does not alter the standard of proof, which remains the balance of probabilities. See Re B (Children) (Care Proceedings: Standard of Proof) [2008] 2 FLR 141 HL. In these proceedings, it is not for the father to prove that he did not engage in non-consensual sexual intercourse with the mother; it is for the mother to provide that he did . My consideration of the evidence must not be compartmentalised. The totality of the evidence must be assessed, in round. See Re T [2004] 2 FLR 83 at para. 33. All relevant evidence must be considered, including, in a sexual abuse case, the evidence of the alleged perpetrator: see Re I–A (Allegations of Sexual Abuse) [2012] 2 FLR 837. The demeanour of a witness in the witness box must be approached with caution, but it may, when considered in the round with the remaining evidence in the case, be a factor of some relevance. See Re B-M (Children: Findings of Fact) [2021] EWCA Civ 1371 at para. 25, per Peter Jackson LJ: "No judge would consider it proper to reach a conclusion about a witness's credibility based solely on the way that he or she gives evidence, at least in any normal circumstances. The ordinary process of reasoning will draw the judge to consider a number of other matters, such as the consistency of the account with known facts, with previous accounts given by the witness, with other evidence, and with the overall probabilities. However, in a case where the facts are not likely to be primarily found in contemporaneous documents the assessment of credibility can quite properly include the impression made upon the court by the witness, with due allowance being made for the pressures that may arise from the process of giving evidence. Indeed in family cases, where the question is not only 'what happened in the past?' but also 'what may happen in the future?', a witness's demeanour may offer important information to the court about what sort of a person the witness truly is, and consequently whether an account of past events or future intentions is likely to be reliable." Lies: people lie for a variety of reasons, and telling a lie in the witness box or in some other related context does not necessarily conceal or indicate guilt or demonstrate a wholesale lack of credibility on the part of the witness concerned. The classic Lucas formulation was given by Lord Lane CJ in [1981] QB 720 in the following terms: "To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness." See also the summary of the law concerning Lucas directions given in Re H-C (Children) [2016] EWCA Civ 136 at paras 97 to 105, per McFarlane LJ (as he then was). The Court held that the principle in Lucas is not limited to accomplices, as was the case in the original Lucas case (para. 98). A Lucas direction applies to the analysis of a witness's credibility in the family courts as much as it does in the criminal courts (para. 99). At para. 100, McFarlane LJ endorsed and applied the approach taken by the Court of Appeal (Criminal Division) in R v Middleton [2001] Crim. L. R. 251: "In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt." The agreed legal summary also highlighted the approach to be taken to assessing a witness's ability to recall events that took place some time ago in the context of the fallibility of memory (relying on the oft-cited Gestmin SGPS SA v Credit Suisse (UK ) Ltd and Anor [2013] EWHC 3560 (Comm) ), and the need to avoid stereotypical assumptions about the way a victim of a sexual assault will respond (relying on Re M [2021] EWHC 3225 (Fam) at para. 83, per Judd J). I will return to those points in my substantive analysis. I pause here to observe that, while concepts and offences from the criminal law are generally unhelpful and are to be avoided in the Family Court, for the purposes of this judgment I will use the shorthand "rape" to describe the conduct which sits at the heart of this allegation. That is the terminology adopted in the judgment of Henke J; see also the observations of the Court of Appeal in Re H-N [2021] EWCA Civ 448 at para. 72. However described, this allegation is an allegation that the father penetrated the vagina of the mother with his penis in circumstances when she was not consenting, and in which he would have known that she did not consent. In one sense, the precise terminology is of less relevance to the analysis I must conduct. The father denies the allegation in its entirety, and in doing so accepts that, had any penetration taken place, it would have been non-consensual. His case is that it simply did not occur. On his case, the allegation has been fabricated by the mother, much in the same way that she fabricated other allegations against him, as found by the Recorder in his unchallenged findings of fact. What matters is less the categorisation of the allegation, but more whether the mother has established that the allegation took place, to the balance of probabilities standard. The hearing The hearing took place in person. Special measures were in place to ensure that the mother was able to give her best evidence at the remitted fact-finding hearing. These included screens, and a separate entrance and waiting area. I agreed with Ms Atkinson and Ms Barnett that, although these proceedings were brought by the father as the applicant, it would be appropriate for the mother to "prosecute" the rape allegation at the heart of the hearing before me. Accordingly, Ms Atkinson called the mother first, and she was cross examined by Ms Barnett. I then heard from the father, defending the allegations. Both witnesses adopted their statements and with my permission gave additional evidence in chief. I do not propose to repeat back to the parties the entirety of the evidence given by each witness. I also stress that, although I have necessarily had to ensure that my findings take into account the whole sea of evidence including the findings of fact reached by Recorder Stables, I have formed my own views of the witnesses' credibility. I have not based my own analysis of their evidence on the general observations about their reliability and credibility made by the Recorder, but rather have approached my analysis of their credibility and reliability from first principles, in light of the evidence they gave in these proceedings, albeit in the context of the preserved findings of fact. Aspects of the mother's evidence were powerful and consistent. There were certain features of it that lacked credibility, for example her insistence that she did not think it was necessary for A to undergo DNA paternity testing, despite maintaining the view that the father is not her father, and that Recorder Stables was wrong on this issue. The focus of these proceedings lay in the single allegation set out above, and on that issue, I found the mother to be a largely reliable witness. She gave evidence powerfully and consistently about the incident itself, without evading questions when faced with probing or difficult cross-examination. She became very emotional. It was necessary to ensure that the questions put to her were appropriate and relevant (for example, I had to intervene when Ms Barnett sought to question the mother on the premise that rough, consensual sex could lead to a urinary tract infection, despite there being no expert evidence before the court on that issue, and it never having been the mother's case that the sex on 30 August 2022 was rough sex). Other aspects of her evidence were less credible, for example, such as claiming not to have sent certain text messages to the father, contending that screenshots in the bundle must have been fabricated. The evidence of the father was generally unpersuasive. His description of the general nature of the relationship he had with the mother, namely that it was complex, and characterised by repeated break-ups and reconciliations, was credible, and was not challenged by Ms Atkinson. He provided a vivid description of the volatility of the relationship he had with the mother in the years and months leading to the alleged incident. The father maintained that he had not been physically violent towards the mother in the past, despite the unchallenged findings reached by Recorder Stables that he had been. As I set out below, however, the most problematic features of the father's evidence relate to his explanation of the incident on 30 August 2022, in particular the text message exchange which he had with the mother the next morning. The morning after the alleged incident on 30 August, the father initiated an exchange of text messages with the mother. In those messages, as will be seen, the mother's tone appears to be one of resigned defeat, almost shame, at an incident – the details of which are not expressly addressed – that took place the night before, namely 30 August 2022. The father's explanation for that exchange was that the mother was looking to create a pretext for separating from him, in order to pursue her relationship with G. That aspect of his evidence was hard to reconcile with his earlier evidence, namely that the couple regularly broke up with each other, and regularly reconciled with each other. If break-ups were so regular, it is difficult to see why the mother would need to address the father in such painful terms about an unspoken incident that took place the night before. I also heard closing submissions from Ms Atkinson and Ms Barnett. Each invited me to reach findings of fact consistent with their respective clients' position. I will turn to the substance of those submissions to the extent necessary below. Findings of fact As I approach my findings of fact, I recall that it is necessary to review the entirety of the evidence, in the round. The factual matrix includes the findings reached by Recorder Stables, and also the remaining evidence in the case, including the oral evidence adduced before me. The burden is on the mother to establish the sole remaining disputed allegation to the balance of probabilities standard. It is necessary to recall that it is important when assessing claims relating to domestic and sexual abuse to bear in mind that there is no typical victim and no typical perpetrator. There is no typical method of domestic or sexual abuse, and there is no typical response to such abuse. It is important to avoid the trap of falling into stereotypical assumptions about the way a victim of sexual abuse may respond or react to such abuse. For example, it may be wrong to assume that a victim of sexual abuse would never choose to engage in consensual sexual activity with his or her abuser on a future occasion. Of course, while many victims of sexual abuse would abhor the prospect of future, consensual sexual activity with their abuser, for many victims the reality of life living with an abuser, for a variety of reasons, may entail consenting to sexual activity on a future occasion. The fact that they have done so does not necessarily mean that their claim to have been the victim of earlier nonconsensual sexual activity lacks credibility. To assume a complete cessation of consensual sexual relations after an incident of sexual abuse would be to impose upon the evidence a stereotypical assumption of how victims sexual and domestic abuse should react. This issue was considered by Judd J in Re M ; see para. 83: "Here it is quite clear from reading the transcript of the hearing and judgment that in rejecting a number (although not all) of the mother's allegations against the father the judge relied very much on the fact she wanted to be in a relationship with the father, she tried to get him back when he rejected her, and that she engaged in sex with him after occasions when she said he had raped or abused her. These reasons may well hold good in many cases, but most definitely not all. In some cases it is a very unsafe premise upon which to base findings of fact, especially if the alleged victim is vulnerable or dependent as the mother said she was here. Further, it seems to me that the judge's disbelief that the mother would have remained in an abusive relationship led her to conclude the mother was lying about it. This tainted the whole of her evidence, and was a thread which ran throughout the case." I respectfully consider that Judd J was not seeking to establish a new proposition of law, but rather simply reflected an existing principle, namely that victims of sexual abuse respond in different ways to the abuse that they have been subjected to. In these proceedings, Recorder Stables reached a finding of fact that the father was A's father. On one view, that finding would be inconsistent with a finding that the father had, some weeks prior to A's conception, engaged in nonconsensual sexual intercourse with the mother; indeed, that was the mother's case insofar as A's paternity was concerned. However, as Judd J noted, such reasoning may well hold good in many cases, but will not apply in all cases. Bearing in mind Recorder Stables' finding about A's paternity, and recalling (as Ms Atkinson submits, without dissent from Ms Barnett) that pregnancy is considered full term at 37 to 41 weeks, A may have been conceived in the run up to 30 August 2022, or shortly afterwards, given her date of birth in the summer of 2023. There is no suggestion she was conceived through artificial insemination or through some other form of assisted conception. The mother has not alleged that further non-consensual sexual intercourse took place after 30 August. Contrary to all directions given in these proceedings (including by me as recently as on 18 July 2025), the mother has not provided a summary of her GP and other medical records pertaining to the pregnancy. In comments on this judgment in draft, Ms Atkinson highlighted Recorder Stables' (unchallenged) findings at para. 34 of his judgment, addressing ultrasound scans from the mother's pregnancy with A. The Recorder said: "Ultrasound scans dated 13.1.2023 (p204 and 203) have upon them 'Baby of [the mother and the father] 11.12.01', 'GA = 17W2d' (which would suggest 14.9.22 as conception date) . The information as to the father must have been given to the hospital after conception. Copies of these images were obviously provided by the hospital and F produced these images, so they must have come into his possession I infer either because he was present or M gave them to him." (Emphasis added) It follows that on the basis of Recorder Stable's declaration of paternity (and the possible timing of conception for a baby born on the date A was born in summer 2023, as emphasised in the quote above), the father and mother may also have had consensual sexual intercourse after 30 August. But bearing in mind the principles about the differing reactions of victims of sexual abuse summarised above, that does not mean that all prior sexual encounters must necessarily have been consensual. To draw that conclusion would be to view the evidence in these proceedings through the lens of a stereotypical assumption about how victims of sexual abuse respond to the abuse they have suffered. There can be no such assumption. The subsequent conception of A is, therefore, largely neutral in my overall analysis, when viewed in the round. By way of a further preliminary observation, the findings reached by the Recorder throw into sharp relief the complex nature of the relationship between the mother and the father. Those findings demonstrate that the mother has sought to implicate the father for conduct which the Recorder found he did not engage in, such as locking B in the car (see para. 64), threatening to harm B physically (para. 70), falsely alleging that the father threatened to commit suicide as a means to control her and exert emotional harm upon her (para. 80). The mother was asked by Ms Atkinson about a police report made by the father in May 2021 concerning messages she had sent to the father's work colleagues in which she accused him of raping other girls. She later withdrew those allegations, and the police disclosure records her as having accepted that the allegations were malicious. In additional evidence in chief, the mother claimed that she only accepted that the allegations were malicious because the father was sitting next to her in the car while she spoke to the police on the telephone. She maintained that she believed the allegation to be true. This is difficult to reconcile with the police disclosure which states that the mother was spoken to "at length", and the father's evidence was that no such call took place when he was in the car with the mother. What is relevant for present purposes is that the mother either made false allegations of very serious offences (as recorded by the police disclosure) or falsely withdrew what she considered to be genuine allegations and was prepared to lie to the police. Either way, the mother's reliability as a witness is called into question, and this is a factor I take into account as part of my analysis. The Recorder also found that the mother regularly restricted the father's contact with B for reasons that were not connected to B's welfare, and that she had punched the father in the lip. The Recorder also found that the mother had wilfully declined to engage in DNA paternity testing of A, despite orders from this court requiring her to do so to which warnings were attached for non-compliance. The Recorder also reached negative findings in relation to the father. At para. 119, the Recorder found that the father smashed the television during an argument with the mother, pinned her to the wall, and in doing so caused her physical and emotional harm in a fit of jealousy. The Recorder also found that the father had used derogatory and highly inappropriate terminology to insult the mother, again as a method of seeking to harm her emotionally, and to exert emotional control over her. Those findings demonstrate the complex nature of the relationship between the father and the mother, and also go to my analysis of the impact of lies they have each told in the course of these proceedings. Both parties to this relationship have inflicted a degree of domestic abuse on the other, and accordingly have experienced domestic abuse at the hands – or words – of the other. Seeking to categorise one party as the "victim" and the other party as the "perpetrator" would, in relation to those earlier findings, be unlikely to assist my analysis. I nevertheless take into account the impact of being a victim of domestic abuse which both parties will have experienced. In the case of the mother, however, if the central rape allegation which she prosecutes at the present time is established, she will have experienced a degree of trauma which is likely to have been of a much greater magnitude, and will continue to be so, on that account. That is a factor relevant to my analysis. There are certain features of the evidence which support the father's case that the mother has fabricated the rape allegation. Significantly, the mother has previously made false allegations against the father for sexual misconduct (or, on her case, falsely withdrew allegations she thought to be true). The mother accepts that she sent messages to his colleagues at his former employer which maliciously labelled him as a rapist, and sought to spread false rumours about him. Those messages resulted in the father reporting the mother to the police. The mother accepted to the police that there was no truth to the messages, and she had sent them in malice. That is a very significant feature of the evidence which causes me to approach the mother's evidence on the central issue in these proceedings with considerable caution. In addition, the mother's report to the police about the 30 August 2022 incident was not made at the time of the incident, but rather in January 2024. The report appears to have been prompted by the father's application for a child arrangements order, which could be said to fit with the broader theme of the mother wilfully seeking to frustrate the father's contact with A. Moreover, the mother withdrew the rape allegation from the police very shortly after she made it. It is also necessary to recall the negative findings reached by Recorder Stables that certain aspects of the mother's conduct was manipulative, vindictive and at times violent towards the father. I also take into account the fact that the mother reported to Cafcass that she had been raped on several occasions by the father, whereas she only reported a single occasion to the police, and there are other inconsistencies in her account as set out below. In isolation, those features of the evidence point towards the mother having not established the rape allegation. However, having heard oral evidence from the mother and the father, considered in light of a contemporaneous exchange of text messages between them the morning after the alleged 30 August incident, I consider that the impact of the above credibility concerns is more nuanced, when all factors are considered in the round. There are several factors of significance which support the overall thrust of the mother's account. First, the mother's oral evidence. The mother's oral evidence about the alleged rape incident was powerful and consistent. I bear in mind the need to approach a witness's demeanour with caution, and I do so. This part of my analysis is not concerned with her demeanour, rather the content of her evidence on this specific issue, its detail and (in broad terms) its consistency. I was struck by the depth and detail of the account given by the mother under cross examination. For example, she described how she awoke to the father being on top of her and, in her words, inside her. She described being sore in her vaginal area afterwards and attributed that to this incident, saying she contracted a urinary tract infection. I note there is no medical evidence, such as in the form of GP records, but this level of detail during the oral evidence was persuasive. One part of the mother's account was that the father was holding a bottle of baby oil; she readily accepted under cross-examination that she and the father did not use baby oil during consensual sexual intercourse. Ms Barnett submitted that the presence of baby oil deprived the account of credibility, since the couple did not use baby oil as part of their normal sexual relations. In my judgment, that is nothing to the point. The mother's account was not of a regular, consensual episode of sexual intercourse, conducted in accordance with their normal practice. It was of an irregular, nonconsensual incident which started while she was asleep, and which caused her to wake up. The detail relating to the baby oil, when considered alongside the remaining evidence in the case, is a feature which in my judgment supports the credibility of this aspect of the mother's oral evidence and does not undermine it. The mother also described how she felt what she described as the "push" of the father as he penetrated her. In doing so, she displayed a degree of raw emotion which would be commensurate with the event having taken place. Of course, I treat her demeanour with considerable caution, as required by the authorities. The father's position in relation to the mother's emotional demeanour is that was all a show. Ms Barnett submitted that the mother was overcome by the enormity of having pursued a false allegation to this stage, and that it was that feature of the proceedings that caused her to display emotion, rather than there being any underlying truth to the allegations. I am alive to that risk, especially in light of the mother's previous history of making allegations against the father that she accepted to be false at the time. I return to this issue below. Ms Barnett submitted that the mother's oral evidence featured inconsistencies. For example, the mother reported to the police that the father was "having sex with me" (see the RASSO Initial Investigation Record dated 19 January 2024), whereas in her statements and elsewhere she said that the father was "raping me". I do not consider that to be an inconsistency. While the term "having sex with me" does not address whether the sex was consensual, when used in the context of reporting an offence of rape to the police it clearly is capable of attracting that meaning. There is no inconsistency on that account. Ms Barnett also submitted that the account given to the police was inconsistent with that given in the mother's statement in these proceedings dated 1 March 2024 in which she said that she screamed when the father raped her. There is no inconsistency; in the account given to the police in the RASSO forms states that "I have then screamed 'GET OFF ME' and moved myself off the bed…" (capitalisation in the original). Thus, the account given by the mother to the police was consistent with the account given in her statement prepared for these proceedings. Ms Barnett also challenged the mother's description of wearing pyjamas, given to the police, as being inconsistent with the rape narrative that she has pursued in this court. Put simply, this criticism is that the father could not have raped the mother if she was wearing pyjama bottoms. Under cross-examination, the mother explained that she used the term "pyjamas" to describe nightwear which would include a loose-fitting T-shirt. Bearing in mind the remaining evidence in the case pertaining to what took place on 30 August 2022, I accept this explanation. To the extent this is an inconsistency, it is a minor inconsistency of the sort which often features in accounts given of an incident some months after it has taken place. Human memory is fallible, as the parties sought to remind me by their joint reliance on Gestmin . While I take this factor into account, I must set it against the broader evidence pertaining to what took place on 30 August 2022. The remainder of the account given to the police was consistent with the account provided by the mother in these proceedings, including the text messages sent by the father the next morning, which I deal with below. I also consider the mother's account of the father having told her that "that is what people in relationships do" to be credible. It is a level of detail which supports the overall account, and is consistent with the shame and stigma on her part which is manifested by the messages outlined below. Secondly, on 31 August 2022, the morning after the alleged rape incident, the following exchange of text messages between the mother and the father took place, starting at 8.25AM ( sic throughout): Father Give me a ring baby xxx Mother Look what happened last night is out of order and it has happened On numerous occasions. It's not fair and makes me feel awful. I had to go and sleep with my son because I can't trust you, your bags are packed and I'll contact your mam to collect them. I don't want to fall out we can still be friends, but we are over. Thanks Father Ring me Mother Don't keep calling me because I don't want to answer. There's nothing more to say. Father Just ring me please Mother I've just said there's nothing more to say now leave me be Father [Name] please Mother No nothing is going to make me change my kind Mind Father Just talk to me please *Missed audio call from the father to the mother* Father Please [name, abbreviated form] Mother There nothing more to say now please leave me alone Father [Name] talk to me please 8.43 AM *Missed video call from the father to the mother* Father Can I see B please *35 second video call* Father Look [name, abbreviated form] I treasure you your my world as well had B my life was shit befor you came along I can't lose you now I admit wrong doing and I am so sorry I don't want to lose us man your the love of my life my sole mate my everything please give me one more chance I promise you won't regret it You can trust me I promise Mother I've give you chance after chance [name] Father [Name] please I promise I cherish and love you more than anything I meen that I don't wanna ring you because that isn't helping but please speak to me Call me asap 9.30 AM Father Pleas get in touch 10.00 AM *Missed audio call from the father to the mother* Father Please call me 10.30 AM Father Call me when you're ready x In my judgment, these messages provide a contemporaneous snapshot of a serious incident which must have taken place the night before. The mother's account of what had taken place the night before ended with her leaving the marital bedroom and going to sleep with B in another room. On her account, she did not see the father the next morning. That would be consistent with him working long hours at that time, as he accepted in his evidence. He would come home late and leave early. That is what had happened the night before, on the account of both parents; the father had been working late, and returned when the mother was already asleep. It follows that the exchange of text messages set out above must have been the first contact between the father and the mother the next morning. It is significant that it is the father who first sought to contact the mother, seeking to engage a discussion with her about a matter he clearly did not want to commit to writing in the form of a text message. I find that the mother's replies provide a significant insight into what had taken place the night before, and that they are illustrative of her frame of mind the next morning. The mother's first substantive reply referred to "what happened last night" being "out of order". Whatever had taken place had happened "on numerous occasions", was "not fair" and made the mother feel "awful". The description of what happened next is consistent with her evidence before me, namely that she went to spend the rest of the night in B's bedroom ("I had to go and sleep with my son because I cannot trust you…"). The consequence of what had taken place was a breakdown in the relationship, leading to the mother packing the father's bags, and contacting his mother to collect them. In my judgment, having heard the mother's account of what she says had taken place the night before and how it made her feel, I find that there is a sense of shame and resigned acceptance in relation to an unpleasant and unspeakable incident the night before. In response, it is significant that the father did not engage with the detail of what the mother said her messages, but instead persistently pleaded with her simply to speak to him. Again, the priority of the father in this exchange appears to be to speak to the mother, suggesting (given the content of the mother's messages) that he accepts that something unpleasant or inappropriate had happened the night before, but without wishing to commit to writing what that was. In response, the consistent theme in the mother's responses was to maintain that the relationship was over, expressing herself in a way which suggested that there had been a precipitating event leading her to adopt that position. For example, by saying "there nothing more to say now please leave me alone" (emphasis added), the mother implied that there had been some recent event which had led her to adopt this approach, which is consistent with her evidence about something awful having happened the night before. As the messages progress, the father committed more detail to writing, and he said that "I admit wrongdoing and I am so sorry" and asked for "one more chance". Significantly, he pleaded for the mother to trust him, which implies that whatever had caused this exchange to take place was an event which would cause the mother not to trust him. In turn, that is consistent with the mother's case that an incident of sexual abuse had taken place. I accept that the messages do not, in terms, state that the father raped the mother, or otherwise had nonconsensual sexual intercourse with her. However, to impose that expectation would be unrealistic. Moreover, the father's evidence in relation to this exchange was unpersuasive. He claimed that he was not able to remember what had happened the night before and speculated that he had been snoring in his sleep, or had been experiencing night terrors, which had caused the mother to seek to sleep in another bedroom. He claimed that the mother had fabricated the narrative which emerges from the messages because she was establishing a pretext upon which to end the relationship, because by this stage she had commenced her relationship with her new partner. I am not persuaded by the father's explanation for a number of reasons. Of course, it is not for the father to disprove the allegations against him. But he has given an explanation, and it is right that I consider it as part of the overall evidential landscape. Drawing these factors together, considering the entirety of the evidence in the round, I reach the following conclusions. The mother's conduct, and other aspects of her evidence, give rise to very significant credibility concerns in relation to what she has told me in her evidence. Her conduct prior to 30 August 2022 suggests a willingness to manipulate the truth in order to hurt the father, for example through restricting access to B, and making false allegations against him. But it is important to recall that people lie for many reasons, and the fact that she lied in relation to those issues does not mean that she necessarily lied in relation to the 30 August 2022 incident. The volatility of the relationship between the mother and the father is a dimension that cannot be ignored, but it does not preclude some of the mother's allegations from being true, as Recorder Stables found in his unchallenged findings of fact, and as I direct myself pursuant to R v Lucas . Ultimately, I find that the contemporaneous text messages exchanged between the father and mother provide an accurate insight into what had taken place on 30 August 2022, when viewed alongside the oral evidence of the mother and the father. The messages feature a raw emotion and shame on the mother's part that is consistent with the account that she later gave to the police and in these proceedings. The father's explanation for the content of those messages lacks credibility, for the reasons already given. While the mother's credibility as a witness is mixed, I find that she is credible on this issue. I accept that the mother did not make a report to the police until much later, and that doing so appears to have been prompted by the father's application for a child arrangements order. I do not consider that that renders the mother's account of the 30 August incident incredible. There are many reasons why a victim of a sexual offence does not report an incident contemporaneously. It would be wrong to assume that a victim of sexual abuse would always make a contemporaneous report. Victims of sexual abuse do not always do so. The reasons for a late disclosure must always be examined. I set out below why I consider the timing of the child arrangements order application made by the father to have been a legitimate catalyst for the mother making the report in the circumstances of these proceedings. Just as there are any number of reasons why a report of sexual abuse may be made later, there are also reasons why an account may be withdrawn, as it was here. The mother would have known that she had made a number of false allegations against the father previously. She referred in her oral evidence to her paranoia about not being believed, and the general difficulties women experience when reporting sexual offences. I find that she would also have had in mind that she and the father had experienced a volatile and complex relationship. In those circumstances, it is hardly surprising that the mother had significant second thoughts about maintaining the allegation and supporting a criminal investigation. I do not consider the timing of the mother's initial report to the police (that is, shortly after the father's section 8 application was submitted) to undermine the credibility of the account that she had provided to any significant extent. Whereas a victim of sexual abuse may be content not to pursue a report to the criminal authorities, different considerations may apply when their abuser seeks formally to enforce access to a child shared with the victim. While the mother may well have been content to put up with what had taken place without seeking external assistance in the period until contact ceased later in the summer of 2023 (the point at which A's parentage became an issue), once the mother's application for a child arrangements order was a realistic prospect, different considerations may well have applied. In conclusion, therefore, having considered the entirety of the evidence in the round, to the balance of probabilities standard, I find that the mother has established the following allegation: "…on 30 August 2022, the respondent was woken up by the applicant raping her. He told her afterwards this was not rape as they were in a relationship." Next steps This matter will now be listed for a directions hearing to determine the onward welfare considerations in relation to B and A. That is the judgment of the court. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII