Lessons to be learned after judge criticised for ‘obsolescent’ views

Children|Divorce | 28 Jan 2020 0

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Family courts and domestic abuse: Last week a family case was the subject of an unusual level of attention from the media, both legal and mainstream, much of it reflecting badly upon the family justice system. I thought I should look at the case, in particular, the lessons that can, or cannot, be learned from it.

The case was JH v MF, an appeal by a mother in child arrangement proceedings, following findings by the judge in respect of abuse allegations made by the mother against the father.

Very briefly, the background to the case was that the parents began their relationship in 2013 when the father was 23 and the mother just 17 years old. They have one child, who was born in January 2015. In the course of the relationship, the mother made a number of complaints of domestic abuse against the father. The relationship broke down, and the parties finally separated in 2016, when the mother went to stay in a refuge, taking the child with her.

Fact-finding

More than two years later, in October 2018, the father applied for a child arrangements order. The mother made allegations of serious abuse against the father, including that he had raped her. Those allegations were investigated by His Honour Judge Tolson QC, at a fact-finding hearing in the Central Family Court in August last year. He made a number of findings, but the one that has led to the most criticism was that the father had not raped the mother, because her lack of physical resistance to the father indicated that she had consented.

The mother appealed, and her appeal was heard by Ms Justice Russell DBE, in the High Court. She was extremely critical of Judge Tolson, saying, amongst other things, that he had employed “obsolescent concepts concerning the issue of consent.” Accordingly, the mother’s appeal was allowed, and the case was remitted for a retrial.

Recommendation for judicial training

Concerned by these findings, Ms Justice Russell concluded her judgment with the following recommendation:

“Judges in the family courts are regularly required to make decisions and find facts in cases where there is domestic abuse; this will include cases where serious sexual assault is alleged to have taken place. Currently there is comprehensive training on the procedural aspects of such trials and the implementation of [Practice Direction] 12J in particular. Judges who sit in the family courts are not, however, required to undergo training on the appropriate approach to take when considering allegations of serious sexual assault where issues of consent are raised. Such training is provided to judges who are likely to try serious sexual allegations in the criminal courts. In principle the approach taken in family proceedings should be congruent with the principles applied in the criminal jurisdiction. I have discussed this with The President of the Family Division, and he is going to make a formal request to the Judicial College for those judges who may hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges. This is a welcome development, a cross-jurisdictional approach to training on this important topic will be of assistance, support and benefit to all judges and will foster a more coherent approach.”

This is indeed a welcome development, although I don’t think that it should be taken as evidence that all family judges would approach cases like this in the way that HHJ Tolson did. I am quite sure that many, if not most, would not.

Wrong lessons

I am also not sure that I agree with a headline that appeared on the BBC, to the effect that the family courts are not a ‘safe space’ for domestic abuse survivors, as suggested by the domestic abuse charity Women’s Aid. Indeed, to make such a suggestion must surely endanger many survivors, who will be put off from going to court.

It is true that there are still problems with the way that the family courts deal with the issue of domestic abuse. For example, as Ms Justice Russell pointed out in the very first paragraph of her judgment, we still have the problem of respondents to abuse allegations not being able to get legal aid to employ a lawyer to cross-examine their accuser, meaning that either the accuser is cross-examined by the respondent, or the judge has to carry out the cross-examination. But that problem will hopefully soon be addressed by the Domestic Abuse Bill, and this case is surely an example of how the system can itself rectify problems that it finds.

No, the system is not perfect, if indeed there ever could be such a thing as a perfect family justice system. There are always ways in which it can be improved, and it will be improved. But to suggest that it is not fit for purpose is to learn the wrong lessons from a case such as this.

You can read the full judgment of Ms Justice Russell here (be aware that it contains explicit descriptions of sexual acts).

Get in touch 

If you would like any advice on domestic abuse and your legal situation, you can find further articles here or please do contact our Client Care Team to speak to one of our specialist domestic abuse lawyers here. 

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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