With many out calls stating ‘Training is not enough’ from the shocking judgment in the case JH v MF [2020] EWHC 86 (Fam) by HHJ Tolson QC’s outdated views on sexual consent in a domestic violence situation to be no longer fit for modern society, to which he should save himself by no longer hearing cases involving domestic violence or sexual assault allegations.
Organisations such as Women's Aid stating “that family courts simply are not safe spaces for survivors of domestic and sexual violence” and Rights of Women stating “the rights in JH v MF should everyone involved in the Family Justice System. HHJ Tolson QC’s views on #sexualconsent are not fit for modern society and he should not be hearing cases involving domestic or sexual violence.” All of which is completely understandable.
As the main concerns drawn from the judgment of Judge Tolson’s outdated views of ‘the mother not physically stopping the father’, failing to acknowledge the fact that refusing consent to sex does not involve physical resistance. With the numerous other inconsistences, such as; failing to apply basic measures by law from screens in the courtroom for JH. However, with the Judge’s understanding that it is ideal that evidence heard from counsel’s row is ‘better’ than using the witness box and screens and that it seemed fair if MF was to provide evidence with prompts provided from his friend (close proximity to JH) in the same manner. Not only that, the repeat interruption by the judge prevented JF from make all the closing submissions in the intended time, to which the hearing continued and not having heard all of her evidence, followed by that the Judge not calling upon the Respondent at all and most shockingly the text sent during the trial was considered as ‘sexting’ not being considered as controlling coercive behaviour. All of which are persistent ‘flaws’ outlined by the media.
However, not to assume all judges take a similar approach but to plan ahead in preventing this from happening again (proposed by the 'Consent' judge: Domestic abuse letter) family courts should have designated domestic abuse champions in every family court and Judges need to be rigorously trained on the appropriate approach to take when considering domestic abuse and serious sexual assault allegations.
Another point to note is Judges must understand the domestic violence and abuse has evolved as the abuse may take place through person to person contact, or through other methods, including but not limited to, telephone calls, text, email, social networking sites or use of GPS tracking devices.
The definition of domestic violence should always be referred too;
‘Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members regardless of gender or sexuality. This can encompass but is not limited to the following types of abuse: psychological, physical, sexual, financial and emotional.
Controlling behaviour is: a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour and Coercive behaviour is: an act or a pattern of acts of assault, threats, humiliation (whether public or private) and intimidation or other abuse that is used to harm, punish, or frighten their victim.’
In my opinion, it is completely understandable that errors of interpretation are going to be made due to every case not being the same, however, it is vital that the training of the Judges would enable them to avoid outdated views from being implemented to current cases.
With references to the Law Gazette Society, the full judgement of the case; https://www.judiciary.uk/wp-content/uploads/2020/01/jh-v-mf-judgment.pdf.
