An Education in Consent: Family court criticised for misogynistic initial ruling

April 10, 2020

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2 min read

What's going on here?

Women’s Aid has criticised the family court for not being a safe space for domestic abuse survivors.

What does this mean?

In the case JD v MF, the father had applied to the family court to spend time with his son, who was in the care of his former partner. The mother objected to this, stating that she had been controlled and raped by the father. Controversially, Judge Robin Tolson QC dismissed the woman’s allegation of rape, stating that as she had done nothing to “physically stop him”, her claim was unfounded. The judge detailed that as the woman “was not in any sense pinned down”, she “could easily, physically, have made life harder” for the man. The mother subsequently lost the court battle over the son.

The High Court accepted the appeal of the mother, Ms Justice Russell stating that the initial judgment was flawed. The judge commented that the previous judgment was “manifestly at odds with current jurisprudence” and that the judgment effectively “would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim”.

What's the big picture effect?

Women’s Aid has criticised the “misogynistic and legally inaccurate” comments made by Judge Tolson. In an open letter, over 130 family lawyers and women’s rights groups have campaigned for mandatory training on the meaning of consent for family court judges. The letter was addressed to the Justice Secretary, Robert Buckland QC, and the president of the High Court’s family division, Sir Andrew McFarlane. The letter also asked for Judge Tolson’s cases to be reviewed moving forward.

In addition, it is argued that more specialist training is needed for family court judges to deal with allegations of sexual assault. The suggested trauma-informed approach may help family courts understand how witnesses and victims present when giving evidence, particularly why they may appear less credible.

It is hoped that this case will spark a change in how family courts respond to allegations of sexual assault for the better. The campaign for more transparency in how family courts make judgments continues.

Report written by Elizabeth Massey

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