Family courts ‘not safe space’ for domestic abuse survivors

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Family courts are not safe spaces for domestic abuse survivors, a women’s charity has told the BBC.

It comes after a judge dismissed a woman’s allegation she had been raped by her then partner because she had done “nothing physically” to stop him.

Women’s Aid said these comments were “misogynistic and legally inaccurate”.

A High Court judge has now said specialist training is needed on the right way to deal with sexual assault allegations by family court judges.

Ms Justice Russell, based in the Family Division of the High Court in London, 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.

Upholding the woman’s appeal against the decision made by Judge Robin Tolson, she criticised the other judge for his “flawed” verdict.

‘Outdated views’

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had lost her court battle with her former partner, which was over custody of their son, and believed Judge Tolson’s “outdated views” on sexual assault influenced his conclusion.

The case was being heard after the man asked to spend time with the boy, but the woman objected, saying he had been controlling and had raped her.

But 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.

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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.”

‘Unsafe and wrong’

Judge Tolson had also carried out what Ms Justice Russell described as a cross-examination of the woman during the original case in August, because her ex-partner did not have legal representation of his own.

Ms Justice Russell said the “vulnerable witness” had asked to give evidence behind a screen but the judge “took the inexplicable step” of ordering her to speak from the seats of her legal counsel – saying her ex-partner should then do the same, referring to the “feng shui of the courtroom” and saying it created “balance”.

She said the family court judge’s approach to fact-finding was flawed, leading to the conclusion it was “unsafe and wrong”.

Judge Tolson’s approach towards consent was “manifestly at odds with current jurisprudence”, she added.

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In her ruling, which was made in December but only published this week, she said: “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 retrial, which will be heard before a different judge.

Ms Justice Russell said 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. The President of the Family Division of the High Court is now to make a formal request for such training to take place.