With news headlines in the past few weeks showing the prevalence of male violence against women, from rape culture in schools to women feeling unsafe in public, you’d think the judiciary would know better. So imagine my surprise when in the family courts rape allegations are described as unwanted and distasteful sexual intercourse, or it is said that a complainant gave reluctant consent.
Most members of the public might not be aware of these attitudes, because many family court hearings are held behind closed doors, and so are protected from the sort of public scrutiny and the kind of transparency almost every other facet of our justice system is subject to.
So it was welcome news that the court of appeal reviewed the family court’s failure over the past 20 years to address the impact of rape, domestic abuse and coercive control on victims’ and children’s lives. At the beginning of the year, four mothers appealed against judges’ orders dismissing their allegations of rape, domestic abuse and coercive control by a male partner. In a conjoined appeal taken to the court of appeal, they raised serious concerns that the family courts failed to properly address their claims, putting them and their children at risk of harm from the father.
Two of the appeals were against decisions made by Judge Robin Tolson, who was criticised last year by the high court at an appeal hearing over his handling of rape allegations in another case. The mother’s appeal in that case was upheld by Ms Justice Russell after Judge Tolson said she could not have been raped because she took “no physical steps” to stop the alleged perpetrator. At a retrial of that case, Ms Justice Judd said that the father had indeed sexually assaulted the mother.
One of the two appeals against Judge Tolson was granted after the appeal court found the judge had minimised the father’s admissions of domestic abuse over a long period of time and underestimated the impact on the mother and the child. In the other appeal, the court said that safe contact was already happening between the father and the child and so refused to look at the mother’s allegations of abuse.
About 40% of cases involving children in family courts include allegations of domestic abuse. In 2019-2020 that amounted to 22,000 cases. This appeal was an important – generational – opportunity to expose some of the outdated, ostensibly sexist attitudes that seem to be deeply embedded in some parts of the family court in England and Wales. But I worry that the court of appeal still missed a wider opportunity to address more of the failings of the family justice system in its recent judgment.
One of the mothers in the appeal, whom I represented, was intimidated by the judge who initially heard her case. In a bid to have the mother agree to a contact order, the judge threatened to have her child taken into care and adopted if she pursued rape and domestic abuse allegations against the father. She cried in court.
The judge told her “this is why fact findings are often a complete waste of time, because the end result will be that there’ll be, at some stage, contact outside with father”. The father had been dismissed from his place of work following serious concerns that he sexually harassed a 16-year-old inpatient and female work colleagues. The court granted the mother’s appeal with “reluctance” and among other things noted that judges are “overworked”. How does that justify a failure to scrutinise the risk of harm to children?
I had high hopes of the court of appeal setting out a clear definition of rape in family cases. I, as with many of my colleagues, am even more confused now than before the appeal. The ruling left the issue of rape even less clear: while the criminal definition of rape will no longer apply in family cases, the court failed to outline any other definition.
I was also deeply disappointed that the court of appeal refused a rape appeal by one of the women, a victim of domestic abuse.
Reading this judgment, anyone might think that the number of appeals is small – and these cases are just a few bad apples in an otherwise satisfactory system. Let’s be clear. It is near-impossible to mount an appeal. In three of these appeals, the mothers had been advised there was no merit in appealing. I disagreed. We appealed against the decisions. Two were granted, one was refused.
Then there’s the time limit: just 21 days for a traumatised victim to appeal against a decision about the most intimate and unimaginable things in their lives. All these mothers applied to appeal out of time, yet their cases were still heard. Then there is the challenge of getting legal aid. The system works against victims fighting to protect the safety of their children from perpetrators.
I believe that the appeal court missed an important opportunity to address the common occurrence of women being cross-examined about their sexual history, past relationships and medical history because it was “beyond the scope of this judgment”. I see mothers’ medical notes being trawled through and routinely used to attack their credibility: they are demeaned, humiliated, gaslit, portrayed as “mad”, sexually lascivious, recklessly promiscuous, somehow less than us. Intimate videos and photographs are presented to judges without the mothers’ consent to apparently show that they had consented to sex on some occasions so, in others, couldn’t possibly have been raped. Using victim’s medical notes and sexual history against them is abusive. This is another struggle we must not give up on.
Despite my serious concerns about the court’s decision, I am relieved that the appeal judges have finally recognised that family courts must look at whether there is a pattern of coercive and controlling behaviour within the parents’ relationship. As academic Evan Stark says, coercive control is like being taken hostage and trapped in a world of fear. While coercive control has been a criminal offence since 2015, the family court is still lagging behind.
All of this points to what I see on a daily basis to be a deeply flawed family justice system and echoes the findings from last year’s Ministry of Justice report that uncovered deep-seated and systemic issues. The report found that the issue of abuse was systematically minimised or dismissed, children’s voices were not heard, there was a pro-contact culture that facilitated unsafe contact arrangements and traumatic and re-traumatising court processes in which abusers continue to exert their control.
I also believe that family courts are systemically failing victims and children and causing them harm. Yet shockingly, some senior judges appear satisfied that the modern approach to domestic abuse is well understood by the vast majority of judges and magistrates. It is not. We need an urgent course correction. Judicial and professional training is critical to ensuring that abuse dynamics are properly identified and understood in these complex cases. It’s why the Lords recently voted to include an amendment I helped to draft for the domestic abuse bill calling for regular, mandatory training for family judges.
Government must ensure this critical amendment is kept in the bill if we are to reform the culture of family courts. Until then, I fear there will be many more appeals revealing our family courts as forums – run in our name – that fail to adequately protect women and children, while those who perpetrate sexual abuse and violence remain disturbingly untouched. It’s got to change.
Charlotte Proudman is a barrister at Goldsmith Chambers and a research fellow of Queens’ College, Cambridge