Family courts 'not safe space' for domestic abuse survivors

A women's charity has criticised a family court judge for a "misogynistic and legally inaccurate" rape ruling.

Judge Robin Tolson dismissed a woman's allegation she had been raped by her then partner, saying she did "nothing physically" to stop him.

The woman argued the judge's approach led to her losing the legal battle with the man, which centred on their son.

Women's Aid told the BBC family courts were not safe spaces for domestic and sexual abuse survivors.

The case had started when the man asked to be allowed to spend time with his son, who was in the care of his former partner. She objected because she said the man had been controlling and had raped her.

A High Court judge has now upheld an appeal made by the woman over the handling of the case and said the other judge had come to a "flawed" verdict.

Ms Justice Russell, based in the Family Division of the High Court in London, said specialist training is needed on how family court judges deal with sexual assault allegations.

In her ruling, she said family court judges often had to make decisions about cases where there had been allegations of serious sexual assault - but they had not always had training on the issue.

The woman, who cannot be identified for legal reasons, had lost her court battle with her former partner, which was over custody of their son, and believed Judge Tolson's "outdated views" on sexual assault influenced his conclusion.

Judge Tolson said what happened "did not constitute rape".

He told the family court that because the woman "was not in any sense pinned down", she "could easily, physically, have made life harder" for the man.

In her ruling, Ms Justice Russell said Judge Tolson's approach towards consent was "manifestly at odds with current jurisprudence".

She said: "This is a senior judge, a designated family judge, a leadership judge in the family court, expressing a view that - in his judgment - it is not only permissible but also acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent.

"This would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim."

The lack of transparency in the family courts makes it difficult to monitor the way in which judges are doing their job.

It is not easy to assess how they are applying directions designed to protect vulnerable witnesses, such as the use of allowing evidence to be given from behind screens or by video link.

There is little or no training in a trauma-informed approach when dealing with victims and witnesses. For example, PTSD may cause a victim of domestic abuse to not appear scared or be unable to remember dates.

This may not be fully understood by some judges and be taken by them as signs of a lack of truthfulness or credibility.

That can lead to something of a "postcode lottery" as to how victims of domestic abuse are dealt with by judges.

The Ministry of Justice is co-ordinating a working party to assess the risk of harm to victims and witnesses in the family justice system.

Many believe that there is a pressing need for better training for judges to enable them to understand the nature and effects of domestic abuse.

She said the family court judge's approach to fact-finding over the sexual assault claims was flawed, leading to the conclusion it was "unsafe and wrong".

In her ruling, which was made in December but only published this week, she added: "The logical conclusion of this judge's approach is that it is both lawful and acceptable for a man to have sex with his partner regardless of their enjoyment or willingness to participate."

She ordered a fresh case to be held, which will be heard before a different judge.

While training was provided to judges in criminal courts considering issues of serious sexual assault and consent, that was not the case in the family court, she added.

The President of the Family Division of the High Court, Sir Andrew McFarlane, is now to make a formal request for such training to take place.

Lucy Hadley, campaigns and public affairs officer at Women's Aid, told the BBC's Victoria Derbyshire programme the case was "absolutely horrific".

"Unfortunately it's not isolated," she said. "We've been campaigning on this issue for years because the family courts simply are not safe spaces for survivors of domestic and sexual violence.

"What this case shows so clearly is that it's sexist attitudes within the court system that actually enable and facilitate that abuse to carry on.

"We hear from women all the time about poor understanding and awareness of domestic abuse and sex violence by the family court judges and family court professionals. It absolutely needs to change."