'Outdated family-court rape views need addressing'

By Emma Ailes
BBC Victoria Derbyshire programme

  • Published
The High Court in LondonImage source, Getty Images

A judge who dismissed a woman's claim she had been raped, as she had done "nothing physically" to stop the alleged perpetrator, is among a number of family court judges to hold "outdated views", a joint letter says.

In it, over 130 lawyers and women's rights groups call for Judge Tolson's continuing cases to be reviewed.

And they say family court judges should be trained on the "meaning of consent".

The Judiciary said a commitment to further training had since been made.

'Serious harm'

The case centred around a man who had 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.

In his ruling, Judge Tolson told the family court because the woman "was not in any sense pinned down", she "could easily, physically, have made life harder" for the man - and it "did not constitute rape".

The woman later argued the judge's approach had led to her losing the legal battle with the man.

The letter - signed by organisations including Rape Crisis England and Wales, Women's Aid and the Centre for Women's Justice - says attitudes such as those expressed by the judge "leave children and women at risk of serious harm".

Addressed to Justice Secretary Robert Buckland and the family courts president, Sir Andrew McFarlane, it says: "Increasingly, the courts are no longer seen as a safe place for women who have been abused."

It adds that since the case came to light in the media, it has "resulted in women contacting some of the signatories to this letter with their experiences of [Judge Tolson] and other judges who have expressed similar attitudes.

"Their concerns have included attitudes about sexual violence as seen in [this case], professional assessment of abusive parents being disregarded without reason and failure to provide special measures during hearings."

The letter is supported by the Victims' Commissioner for England and Wales, Dame Vera Baird, the Domestic Abuse Commissioner, Nicole Jacobs, and the London Victims' Commissioner, Claire Waxman.

Trish's story

Image source, Getty Images

Judge Tolson was also the judge in the case of "Trish" - not her real name - deciding the level of contact she and her ex-partner were allowed with their children.

"I was with my ex-partner for several decades," she tells the Victoria Derbyshire programme.

"He was physically abusive and financially and emotionally coercive and controlling. I finally left when he started to abuse my children as well."

Trish's ex-partner applied to the courts for contact and was granted access.

Her elder child is now old enough to be able to make their own decision about not going for contact.

But she says her younger child is "terrified of going for contact with him and says he's been physically abusive".

"All I want is for this to be properly investigated. I've been in court at least 20 times," she says.

"He can afford lawyers but... I have to represent myself.

"He's continuing to control me and abuse - and that's enabled by the courts.

"The children's voices are not heard and to not even have the courts protecting vulnerable families is really scary.

"I am deeply concerned for the future of my children and their safety."

The woman whose rape claim was dismissed by Judge Tolson has now had her appeal upheld by a High Court judge, over its handling.

Ms Justice Russell, ordered a fresh case to be held before a different judge and said specialist training was needed on how family-court judges dealt with sexual assault allegations.

The letter welcomes her recommendations but adds: "There are wider systemic issues, including some lack of understanding of domestic abuse and serious sexual assault and a failure to apply the practice directions to afford victims a fair trial.

"This is despite training and clear rules."

It calls for the appointment of "appropriately trained domestic-abuse champions in each family court", greater accountability for judges and specific training on the meaning of consent and free will for all family-court judges.

The UK Judiciary said in a statement that "prior to the delivery of the appeal judgment [in the Judge Tolson case], the president of the Family Division had asked the Judicial College to provide additional bespoke training in dealing with cases of sexually related assault for judges trying domestic abuse cases in the Family Court.

"The enhanced training will be delivered - initially electronically - from May 2020 and from then on will be included in every continuation training course for the Family judiciary.'

It said the proposals would see family-court judges given "similar training to that which is already given to criminal judges who hear serious sexual criminal trials".

The Ministry of Justice declined to comment.

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