The courts’ outdated views on domestic violence are putting vulnerable children at risk of harm

It is astounding that in 2020 a family court judge who deals day in, day out with cases of domestic abuse and serious sexual assault can believe that it is lawful for a man to have sex with a woman even when she says no. Yet this is exactly what happened on 8 August last year.

The case involved a father who applied for contact with his young child. The mother alleged a history of domestic violence and serious sexual assault. Senior family court judge HHJ Tolson QC ruled against her on various grounds. According to him, for a woman to show lack of consent, she must physically resist penetration.

The judge’s decision was overturned on appeal by the High Court on 5 December 2019; in an appeal judgment against his decision, The High Court said that the judge’s views were outdated and his decision was “so flawed as to require a retrial”.

But his errors did not stop there. Judge Tolson dismissed the father’s violent outbursts (such as throwing objects) as controlling or coercive behaviour without giving any reasons. Despite there being police records and evidence from independent witness statements showing domestic abuse, the judge concluded that there was no independent or corroborative evidence.

Judge Tolson also took it upon himself to take over the role of the alleged perpetrator and cross-examine the mother. The mother requested a screen in court because she was scared to give evidence in front of the alleged perpetrator; judge Tolson refused. With apparently no understanding of the re-traumatising impact of reliving the abuse in front of the alleged perpetrator, the judge described the mother as having a “highly anxious, and it might be said, neurotic, disposition”.

Despite judge Tolson’s misogynistic attitudes, he remains in a position of power, making life-changing decisions that impact upon the lives of women and vulnerable children. In light of this, should there be a review into all of his cases where there is alleged domestic abuse and serious sexual assault?

Criminal judges who hear cases of serious sexual assault allegations are provided with training on how to appropriately handle such cases, yet family judges are not. The president of the Family Courts has urged the Judicial College to provide similar training to family court judges.

Still, it is unlikely that a short training course on serious sexual assault will change entrenched sexist attitudes amongst the judiciary. The attitudes of the judiciary represent the elite few rather than accurately representing the views of a diverse society. Part of the problem is that the judiciary is largely male, pale and stale: only 29 per cent of court judges are women, and just 8 per cent of judges identified as BAME.

There is a plethora of cases each year in which criminal judges suggest that victims of rape are responsible for their own abuse. In contrast, family courts are secret and therefore less accountable and open to scrutiny.

There are myriad problems with family courts’ handling of cases involving domestic violence. Family law starts with a presumption that children should have contact with both of their parents; I have seen many cases where family courts have ordered contact with a known violent parent, which has left me feeling concerned for both the welfare of the child and the safety of the mother. In this case, judge Tolson ignored the father changing the child’s nappy with “more force than normal”, which could be indicative of possible abuse and harm.

At least four children have been killed by a parent in the past five years after a family court ordered child contact. Last year, Louise Haigh MP (along with 120 MPs) asked the government for an inquiry into how family courts treat victims of domestic violence and their children, but the government has instead set up a review of child protection in family courts.

The government’s approach has been criticised for not including survivors on the panel and not holding an inquiry that could involve a thorough review of past decisions by family courts to see if there is a pattern of errors of judgment. The outcome of the review is expected later this year.

Meanwhile, family courts’ outdated attitudes towards domestic violence put children at risk of further harm – sanctioned by the very institutions that are supposed to protect them.

Charlotte Proudman is a human rights barrister specialising in gender-based violence and a fellow at Queens’ College, Cambridge