Legal News

Statistics provided by charities show that each year nearly 2 million people in the UK suffer some form of domestic abuse (including financial abuse, physical abuse, verbal abuse, and emotional abuse). Out of the 2 million people, 1.6 million are female victims (7.3% of the UK population) whilst 757,000 are male victims (3.6% of the UK population). It has been found that women in relationships are more likely to be victims of domestic sexual assault. These statistics are from the Crime Survey for England and Wales (CSEW) year ending March 2020.

Recently there has been an increase in the number of serious claims being made by mothers against the fathers of their children in family proceedings. These include allegations of sexual abuse and coercive control.

In a recent case before His Honour Judge Tolson, during the fact finding hearing in 2019, he concluded the hearing in favour of the father as he found the father’s account to be consistent, despite police evidence to the contrary. He also ignored the admission of the father where he stated that he had used physical violence on a few occasions towards the mother. The mother appealed against this decision and was successful (JH v MF [2020] EWHC 86 (Fam)). As a result, Judge Tolson was criticised for not being open-minded, that he failed to make a holistic evaluation, and he did not analyse the evidence before him.

In this case, father and mother had been separated for more than three years and father was seeking to be allowed to spend some time with the child. The mother objected and complained that the father was controlling and had raped her when they were living together. She made an allegation of non-consensual sex to which Judge Tolson responded that the alleged non-consensual sex preceded “many other occasions of consensual sex”. He also stated there was no rape as the mother took no physical steps to stop him from raping her.

Counsel representing the mother argued that “…it should not be taken that just because a woman has consented to sex in the past that she should be taken as consenting every time”. He further stated that he would have hoped that such assumptions were no longer made in today’s day and age.

Mrs Justice Judd who reconsidered the case in the Family Division of the High Court concluded that on the balance of probabilities, the mother had been raped twice by father and this was glaring as her evidence had been consistent throughout the evidence giving process. Similarly, Ms Justice Russell, dealing with the appeal described Judge Tolson’s ruling as being “so flawed” and she recommended that family court judges should be required to undergo training on the appropriate approach to sexual assault allegation.

As a result of Judge Tolson’s flawed judgement, there are now four appeals which are currently being heard in the Court of Appeal which could arguably have a significant impact on how judges deal with domestic violence cases.

Overall, it is clear that these assumptions still exist within the judicial system, which demonstrate that there is a lack of understanding of domestic abuse and the ongoing effect of coercive control in family proceedings. For some married women in domestically violent relationships, it is difficult for them to recognise themselves as victims and as such may not report abuse to the authorities due to a fear of not being believed or that assumptions will be made of them.

In conclusion, there is clearly an urgent need for an update on how the family courts approach cases involving rape, domestic abuse and coercive control. Assumptions of how married women cannot be raped are outdated attitudes which could leave the mother and children at risk of serious harm.


Author Oluwatobi Victoria Akinwande is a caseworker in the family and child care department and has expertise in matters involving divorce, domestic violence and private family proceedings.

Contact Oluwatobi on 02070147307 or at oluwatobiv@duncanlewis.com