Archaic view on consent in family court

After a judgement this week family judges likely to hear cases involving sexual assault allegations will receive training on consent. This comes after a leadership judge employed ‘obsolescent concepts’ in his findings – including the idea that complainants alleging sexual assault must physically resist the perpetrator to establish lack of consent.

HHJ Tolson concluded in family proceedings that a woman was not raped as she had not ‘physically’ resisted unwanted sex.

In the family division of the High Court, the Honourable Ms Justice Russell DBE, in JH v MF,  said His Honour Judge Tolson QC’s judgment last August was ‘so flawed as to require a retrial’.

It is not the first time Judge Tolson has hit the headlines as he previously presided over the Owens v Owens divorce case that eventually ended up in the Supreme Court. This has led to campaigns for  ‘no fault divorce’ which we have previously written about and you can read here.

On this occasion HHJ Tolson’s order was made following a fact-finding trial in Children Act 1989 proceedings for child arrangement orders. The case was about making living arrangements for the young children of a unnamed couple. The mother alleged that she was the victim of domestic abuse by the father, including serious sexual assault.

Tolson ruled against the woman who said that she had been raped by her ex-partner during her marriage, in part because “the mother did nothing physically to stop the father”.

In a judgment published this week, overturning the earlier judgement, Russell J said Tolson had failed to consider or appreciate the concepts and reality of domestic abuse, control and coercion, ‘and the fact that such abuse is not confined to physical violence’.

Russell J went on to state that Toulson approach on consent ‘is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct’.

Russell J said: “This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no (by asking the perpetrator to stop) but also that a complainant must and should physically resist penetration, in order to establish a lack of consent”.

Toulson’s judgement would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim’.

Russell J pointed out that there is no legal rule that lack of consent must be shown by physical resistance. Her judgment says that “this approach is wrong, family judges should not approach the issue of consent in respect of serious sexual assault in a manner so wholly at odds with that taken in the criminal jurisdiction”

It is the case that family court judges are regularly required to make decisions and find facts in cases where there is domestic abuse. However, they are not required to undergo training on the appropriate approach to take when considering sexual assault allegations where consent issues are raised.

The family division president will now ask the Judicial College to train judges who might hear cases involving serious sexual assault allegations in family proceedings based on training already provided to criminal judges.

Family court judges have an unenviable responsibility: they have to make balance-of-probability rulings about what happened between two parents behind closed doors, sometimes based on limited evidence, that determine how much, if at all, contact those parents have with their children, whose safety is paramount.

The team at Maguire Family Law hope that a worrying oversight has now been highlighted, and additional training will give Judges the additional skills that are often needed when presiding over cases where there are serious sexual allegations, resulting in a fair and proportionate outcomes.