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Domestic Abuse - Judges' Outdated and Sexist Attitudes Need to Change

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


By Julia Ju



What has happened?

Recently, senior family court judge HHJ Tolson QC ruled against the claimant in a case involving marital rape and domestic abuse. He justified this ruling by stating that rape must include physical resistance and concluded that, in this case, the mother did not take ‘physical steps’ to stop her assailant.[1] He further supported this argument by unfairly emphasising that there were ‘many other occasions of consensual sex’ in-between the alleged non-consensual sex.[2] It must also be noted that Judge Tolson dismissed the father’s violent outbursts as controlling or coercive behaviour with no justification and more so refused the mother’s request for a screen in court as she was nervous about giving evidence in front of the father.[3] The outdated and sexist course of action taken in this case, as well as his handling of other related rape cases, has been heavily criticised by lawyers and other judges, leading to questions and doubts about the Family court’s dealings with allegations of domestic abuse and coercive and controlling behaviour.


General Guidance by the Court of Appeal

For the first time in 20 years since the landmark case of Re L, V, M, H[4], the appeal court was asked to give guidance on domestic abuse in a child contact case. This open-ended question was part of a ground-breaking case centred on four linked appeals, brought by mothers challenging decisions made by circuit judges, two of which were decided by Judge Tolson. Submissions were made, promising the possibility of change in the treatment of domestic abuse in child contact cases in the form of Practice Direction 12J (PD12J).[5] Representing one of the mothers, Christopher Hames QC claims that the court should be more aware of repeated behaviour “which, by themselves, may not be as significant as they are when taken cumulatively”.[6] Supporting this is Mills, representing Rights of Women, Women’s Aid, Welsh Women’s Aid and Rape Crisis England and Wales, who says: “The mischief that we are looking out for, that the court should be looking out for on coercive and controlling behaviour, is the power dynamic, the patterns of behaviour and the impact on the victim. Because that is not properly understood by the court”.[7]


What Went Wrong and Why is Change Necessary?

As Lucy Hadley, Head of Campaigns & Policy at Women’s Aid Federation of England, pointed out, the thoughtless decisions of the court by taking a pro-contact approach results in the failure of prioritising children and domestic abuse victims’ rights and welfare. Hadley argues that the court’s decisions often lead to exposures of further abuse and harm when in contact with the perpetrator.[8] Similarly, Gwendolyn Sterk, Head of Public Affairs and Communications, Welsh Women’s Aid said: “Time and again we hear from survivors across Wales about ineffective and traumatic experiences within the family courts and child contact arrangements”. Sterk blames this on the obsolete and sexist views that the judges hold on rape and consent, which ‘too often retraumatise and lead to decisions that undermine the safety of women and children’.[9]


More Needs to be Done

Evidently, it seems that many issues have arisen from the way the family court treats allegations of domestic abuse and coercive and controlling behaviour. So, the question remains: what can be done differently? I believe that one of the first steps would appropriately be to ask for general guidance from the Court of Appeal. In this way, judges are exposed to different opinions and advice which it can be argued they had been oblivious to or had not considered before. Ultimately, this reform has a high chance of improving the family court’s decision-making and more importantly, it will result in better outcomes for domestic abuse victims and their children.



 

Image Source

De Vere T., ‘Domestic Abuse is Domestic Terrorism’ (Athena Talks, 19 June 2017) <https://medium.com/athena-talks/domestic-abuse-is-domestic-terrorism-59ff3b431f6f> accessed 17 February 2021.

[1] Hannah Summers, ‘Landmark hearing to examine handling of domestic abuse cases by courts’ The Guardian (London, 19 January 2021) <https://www.theguardian.com/society/2021/jan/19/landmark-hearing-to-examine-handling-of-domestic-abuse-cases-by-uk-courts> accessed 17 February 2021. [2]ibid. [3] Charlotte Proudman, ‘The courts’ outdated views on domestic violence are putting vulnerable children at risk of harm’ The Independent (25 January 2020) <https://www.independent.co.uk/voices/family-courts-sex-consent-domestic-violence-children-a9301641.html> accessed 17 February 2021. [4][2001] 2 WLR 339. [5] Practice Direction 12J - Child Arrangements & Contract Orders: Domestic Abuse and Harm (10 February 2021) <https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12j> accessed 17 February 2021. [6] Monidipa Fouzder, ‘News focus: How should the family court treat allegations of domestic abuse?’ The Law Society Gazette (1 February 2021) <https://www.lawgazette.co.uk/news-focus/news-focus-how-should-the-family-court-treat-allegations-of-domestic-abuse/5107217.article> accessed 17 February 2021. [7]ibid. [8] ‘Court of Appeal considers Family Court’s approach to domestic abuse in child contact cases’ (Rights of Women: helping women through the law, 19 January 2021) <https://rightsofwomen.org.uk/news/court-of-appeal-considers-family-courts-approach-to-domestic-abuse-in-child-contact-cases/#olive-craig-senior-legal-officer-at-rights-of-women-said-today> accessed 17 February 2021. [9]ibid. Bibliography

‘Court of Appeal considers Family Court’s approach to domestic abuse in child contact cases’ (Rights of Women: helping women through the law, 19 January 2021) <https://rightsofwomen.org.uk/news/court-of-appeal-considers-family-courts-approach-to-domestic-abuse-in-child-contact-cases/#olive-craig-senior-legal-officer-at-rights-of-women-said-today > accessed 17 February 2021.

Fouzder M., ‘News focus: How should the family court treat allegations of domestic abuse?’ The Law Society Gazette (1 February 2021) <https://www.lawgazette.co.uk/news-focus/news-focus-how-should-the-family-court-treat-allegations-of-domestic-abuse/5107217.article> accessed 17 February 2021.

Practice Direction 12J - Child Arrangements & Contract Orders: Domestic Abuse and Harm (10 February 2021) <https://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_12j> accessed 17 February 2021.

Proudman C., ‘The courts’ outdated views on domestic violence are putting vulnerable children at risk of harm’ The Independent (25 January 2020) <https://www.independent.co.uk/voices/family-courts-sex-consent-domestic-violence-children-a9301641.html> accessed 17 February 2021.

Re L, V, M, H [2001] 2 WLR 339.

Summers H., ‘Landmark hearing to examine handling of domestic abuse cases by courts’ The Guardian (London, 19 January 2021) <https://www.theguardian.com/society/2021/jan/19/landmark-hearing-to-examine-handling-of-domestic-abuse-cases-by-uk-courts> accessed 17 February 2021.

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