Case Analysis: Re A (Appeal: Finding of Fact) 2025 EWHC 1279
Re A (Appeal: Finding of Fact) 2025 EWHC 1279 (Mr Justice Hayden)
Headline background facts:
Proceedings concerned three children aged 15, 12 and 10 years (at the time of the appeal).
In 2008 the parties married.
July 2017: The parties separated and Children Act litigation started.
October 2017: A final Order was made that provided for the children to have contact with their father.
December 2017: The second set of proceedings commenced with the mother seeking to prevent contact on the basis of domestic abuse allegations – including physical and sexual abuse. The father countered this with a claim that it was the mother who physically and sexually abused him.
February 2018: Judge made a shared arrangements order pending final hearing.
June 2018: Further hearing with a recital that both parties agree they will not pursue any allegations against each other. On this basis the court determined that it made no findings on those allegations and therefore ‘the allegations were not proven.’
November 2019: Arrangements suspended and contact directed at a contact centre.
March 2021: Finding of fact listed but adjourned as mother raised further allegations including marital rape. Allegations between the parties now totalled 70.
March 2022: Finding of fact hearing before Recorder Sarah Counsell.
May 2022: Application to appeal. Five Grounds of appeal of which one was given permission. This ground related to the finding that the father had raped the mother ‘on at least one occasion when she slept in the marital bed.’ Permission given on grounds that it was arguable that the Recorder had failed to give sufficiently cogent reasons in making this finding.
April 2025: Appeal hearing (delay of 3 years…‘due to the appeals system in the Royal Courts of Justice’). Appeal allowed on one ground.
Mr Justice Hayden’s soundbites…
The judgments produced by Mr Justice Hayden are always carefully and sensitively crafted. The focus of his judgment is always for the family that he is making significant decisions for. But there is no escaping the fact that he has a unique ability to tap into the emotional intelligence of those observing from the outside and ‘tell a good story’.
So I thought it might help to signpost you to some of his soundbites arising from this judgment. As you can see from the facts above sadly the timeline is a familiar one to advocates (maybe not the three years waiting for an appeal!) but the way in which cases can just ‘mushroom’ with a loss of control as to the overall timetable.
Allegations: ‘the litigation had begun to drift from its moorings.’
This was said in relation to the movement of the allegations (there had been a determination that the allegations were not relevant, then a reverse of that decision and then a finding of fact listing compromised as more allegations were added to the schedule).
Case management: ‘Efficient and proportional case management, strict adherence to Orders, and judicial continuity should not be regarded as merely aspirational, they are essential.’
Judicial continuity:
‘Judicial continuity in this sphere is not only necessary to achieve more effective hearings and, accordingly, better-informed decision-taking, it is, in itself, a facet of child protection. It is the subject children who sustain the scars of protracted, vituperative and intractable litigation of this kind.’
‘I do not know what factors led to this yet further departure from the important objective of judicial continuity, but it is, in principle, to be deprecated.’
Efficient and proportional case management:
‘Ineffective case management invariably leads to delayed decision-making and sows fertile ground for error. Case management requires a case manager; a judge who can deliver consistency and commitment to the case, recognising that the decisions relating to the evidence are taken in a continuum and not in a vacuum’.
Process and procedure for determining which allegations (if any) are relevant
The first question to ask is are they relevant? ‘are they likely to be relevant to any decision of the court relating to the welfare of the child.’
The second question to ask which ones are relevant? ‘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.’
Remember: ‘This is a selective exercise and one which may act counterintuitively to family practitioners.’
The meaning of rape and avoiding ‘cross contamination’ between the world of criminal and family law when it comes to what consent and submission mean. It is the behaviour that matters and how that impacts on the welfare of the children.
‘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.’
‘the observations of Sir Andrew McFarlane (P) in Re H-N and Others (children) domestic abuse: finding of fact hearings) [2021] EWCA Civ 448; [2022] 1 All ER 475 at [71]:
"Behaviour which falls short of establishing 'rape', for example, may nevertheless be profoundly abusive and should certainly not be ignored or met with a finding akin to 'not guilty' in the family context."
‘This echoes Hickinbottom LJ's observations during the hearing in Re R (Children) (Care Proceedings: Fact-finding Hearing) [2018] EWCA Civ 198; [2018] 1 WLR 1821, reprised by the President in Re H-N (supra) that:
"71. … The Family court should be concerned to determine how the parties behaved and what they did with respect to each other and their children, rather than whether that behaviour does, or does not, come within the strict definition of 'rape', 'murder', 'manslaughter' or other serious crimes."
‘As it happens therefore, all this serves, conveniently, to illustrate the importance of identifying, clearly, those issues which must be tried at a fact-finding hearing and those which do not need to be. On the facts of this case, it was not necessary to explore the challenging terrain between 'consent' and 'submission' to sexual intercourse. This was a marriage characterised by the wider controlling behaviour of F, in the manner described by the Recorder. This, it seems to me, is the essence of the identified harm on which the analysis of the children's future welfare was predicated. If it requires to be said, which I hope, in the light of my reasoning above, it does not, this is not, in any way, to diminish the gravity of an allegation of rape. It does, however, serve to highlight and illustrate the separate and distinct functions of the Family Court and the Crown Court.’
Good Judgment writing – ‘let a thousand flowers bloom!’.
This was said in the context of not taking away style and identity from a Judge but ensuring the presentation is secured on the essential framework as set out in Jackson LJ said in Re B (A Child) (Placement Order: Adequacy of Reasons) [2002] EWCA Civ 407 [2022] 4 WLR 42:
"59. Judgments reflect the thinking of the individual judge and there is no room for dogma, but in my view a good judgment will in its own way, at some point and as concisely as possible:
(1) state the background facts
(2) identify the issue(s) that must be decided
(3) articulate the legal test(s) that must be applied
(4) note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned
(5) record each party's core case on the issues
(6) make findings of fact about any disputed matters that are significant for the decision
(7) evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties
(8) give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes."
"60. The last two processes—evaluation and explanation—are the critical elements of any judgment. As the culmination of a process of reasoning, they tend to come at the end, but they are the engine that drives the decision, and as such they need the most attention. A judgment that is weighed down with superfluous citation of authority or lengthy recitation of inessential evidence at the expense of this essential reasoning may well be flawed. At the same time, a judgment that does not fairly set out a party's case and give adequate reasons for rejecting it is bound to be vulnerable.
Appeals: ‘An Appellate Court must not allow itself to be hijacked by a seductive narrow textual analysis.’
‘The principles set out in Fage Uk Limited v Chobani UK [2014] EWCA Civ 5 ‘shield the findings of a first instance judge with a robust and durable armour, though not, ultimately, an impregnable one.’
As ever, make sure you give the judgment a read in full. The full decision can be found here https://www.bailii.org/ew/cases/EWHC/Fam/2025/1279.html
Written by Lisa Edmunds, CEO and Senior Consultant Barrister at Unit Chambers.
If you found this article insightful, you might enjoy Lisa’s debut book, A Practical Guide to Fact-Finding Hearings in Public and Private Law Proceedings in Family Law. In her book, Lisa takes readers on an insightful journey into the craft and methodology of fact-finding hearings in family law. Drawing on her extensive experience, Lisa unpacks the nuanced processes that define the pursuit of truth in cases involving children, shedding light on the critical distinctions between family and criminal courts. Find out more here.
Law is correct as of 29th May 2025. Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational purposes. Readers are respectfully reminded that it is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose. No liability is accepted for any error or omission contained herein.
