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28 February 2020

An Appeal on Issues of Sexual Assault and Consent

8 mins

A highly controversial judgment of His Honor Justice Tolson QC has sparked a considerable response from lawyers and women’s rights groups, who last week submitted a joint letter addressed to the President of the Family Division of the High Court, stating that ‘increasingly, the courts are no longer seen as a safe place for women who have been abused.’

Following the judgment at first instance and subsequent appeal, the detail of which will be set out below, welcome recommendations have now been made for family court judges to undergo training on the appropriate approach to take in cases where there is serious sexual abuse and a question of consent.

The facts:

The case was an appeal of an order made at a fact-finding hearing in child arrangements proceedings. The applicant (JH) and respondent (MF) commenced a relationship in 2013 when they were aged 17 and 23 respectively, and moved in together shortly afterwards.  Their first child, the subject of the children proceedings, was born in January 2015.

Throughout 2015 and 2016, JH made a number of complaints to the police of domestic abuse. It was JH’s cases that the abuse culminated in two occasions where MF had sexual intercourse with JH without her consent. In August 2016, JH reported to the police that MF had sexually assaulted her. She was categorised as a high-risk victim and moved into a refuge with the parties’ child. MF was arrested and interviewed under caution by the police; however, the CPS took no further action with respect to the sexual assault allegations.

MF made an application to the Central Family Court for a child arrangements order in October 2018, and the matter went before the court for a fact-finding hearing in August 2019. HHJ Tolson made a number of controversial decisions and statements, which did not take into consideration the abuse suffered by JH. As a vulnerable witness, JH had requested for screens to be made available in the court room to shield her from seeing MF, however this was not permitted by the judge. The judge also concluded in the absence of expert evidence that JH was “a woman who is of an extremely anxious, it might be said, neurotic, disposition.”

When addressing the sexual assault reported by JH, the judge said:

My concern about this occasion centres on the idea that the mother did nothing physically to stop the father… I do not find that the father was in any way on this occasion so physically forcing her as to cause her not to be able to take preventative measures, nor, in fact, is that case alleged. Following the event, as I have already said, the mother took no immediate action to report the matter to the police, or indeed to anyone else.

The judge ultimately found against JH who appealed the case to the Family Division of the High Court before Ms. Justice Russell in January 2020.  

The appeal:

The first ground of appeal submitted that the judge had erred in his task in balancing the evidence, in placing insufficient weight on corroborative evidence before the court. During the case, the judge had been directed to the police disclosure, which had included a statement filed by the parties’ neighbour, however, the judge found that the evidence was not independent, nor did it corroborate JH’s case. Ms. Justice Russell, in considering this ground of appeal, noted that it was unclear why the judge had disregarded this evidence, and, it appeared that the only reason for doing so was that the neighbour was a friend of JH.

On the second ground of appeal, it was submitted that the judge’s conclusions in respect of ‘controlling and coercive behaviour on the part of the respondent [were] predicated on an assumption that the use of language cannot form a significant part of the basis of a controlling relationship’. Ms. Justice Russell accepted this submission on behalf of the mother, finding that taken together, the respondent’s language was part of a pattern of abuse and coercive behaviour.

The third ground of appeal submitted that the judge had incorrectly placed weight on the demeanour of the parties when assessing their evidence. As noted above, Ms. Justice Russell noted that the judge had considered JH to be anxious and neurotic. During her oral evidence, JH had also stated that she was ‘stressed, nervous…It’s hard if he can be here.’ Ms. Justice Russell noted that the judge’s description of JH ‘wholly failed to consider or even entertain any likelihood that her anxious presentation was as a result of previous abuse.’ She further stressed that there are facilities available for witnesses to give evidence by video link, although as previously noted, a request by JH for a screen was denied.  

On the fourth ground of appeal, it was submitted that the judge had failed to take into account that there had been police involvement with respect to previous incidents of domestic abuse and harassment perpetrated by MF. Ms. Justice Russell found that the judge was dismissive of the inconsistencies in MF’s evidence, and of the police disclosure. Moreover, he referred to an incidence of violence where MF had pinned JH to a wall as ‘the only allegation of violence,’ which in Ms. Justice Russell’s view failed to consider ‘the concepts and reality of domestic abuse…and the fact that such abuse is not confined to physical violence.’

The fifth ground of appeal submitted that the judge had been wrong to make findings on matters which were not put to [JH]. For example, the judge had made a finding that JH herself had been ‘guilty of aggressive behaviours,’ when this had not been put to JH during the fact-finding hearing and was not a part of the respondent’s case. Ms. Justice Russell found that it was improper of the judge to make this finding in the circumstance, and additionally noted that his considering sexually explicit and threatening texts as not being ‘helpful’ to JH’s case showed a failure in understanding of the effect of such abusive behaviour.

On the sixth ground of appeal it was submitted that the judge had been wrong in allowing his ‘outdated views on sexual assault,’ to influence his findings. Ms. Justice Russell expressed in strong terms that the judge’s approach on consent, as set out in the above quote, was ‘manifestly at odds with current jurisprudence…and what is current acceptable socio-sexual conduct.’ She went on to stress her concern that:

This judgment is flawed. 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. This would place the responsibility for establishing consent or lack thereof firmly and solely with the complainant or potential victim.

On the seventh ground of appeal, which submitted that the judgment was unjust due to serious procedural irregularity, Ms. Justice Russell noted that she would have permitted the appeal on this point alone, stating that the judge’s approach at the fact-finding hearing was flawed to the point that it was ‘unsafe and wrong.’ It was submitted on the applicant’s behalf that the judge had not taken into account the definitions of domestic abuse, coercive and controlling behaviour, and had failed to consider these definitions in any part of his judgment.

Given the above, the appeal was allowed and orders were made for a retrial.


Ms. Justice Russell went on to note that, while there is comprehensive training on the procedural aspects of cases where there is domestic abuse, including cases where serious sexual assault is alleged, judges who sit in the family courts are not required to undergo training on the appropriate approach to take in such serious cases where issues of consent are raised.

This training already exists in the criminal courts, and on the recommendation of Ms. Justice Russell to the President of the Family Division, a formal request has been made for family court judges to undergo the same training.  

This is a very welcome recommendation, although it is perhaps surprising and concerning that this issue has not been raised sooner, and is unlikely to provide little comfort to JH who will nonetheless be required to attend the listed retrial. It is hoped that the appeal judgment will lead to change and prevent women being subjected to similar circumstances in the future.

A link to the full judgment of Ms. Justice Russell can be found here.

At Bindmans, we deal with all aspects of family law including child arrangements proceedings in which serious allegations are raised. If you have any queries or concerns, please do not hesitate to get in touch.

This article was written by Safina Mitha, Paralegal.

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