A Thanet mother who was ‘failed’ by the family court system is among a group of four cases which could see a landmark ruling and change the way judges deal with abuse and rape allegations in family proceedings.
In January The Royal Court of Appeal – the second highest court in operation – will hold a Judicial Review to consider how four family court cases, where rape, domestic abuse and/or coercive control allegations were involved, were dealt with.
The hearing comes following High Court family judge Ms Justice Russell overturning a ruling by Family Court judge Robin Tolson as “flawed” after he ruled against a woman who said that she had been raped by her ex-partner, saying “the mother did nothing physically to stop the father.”
Justice Russell called for training for judges dealing with rape and sexual assault allegations in the Family Court in light of her colleague’s ‘lack of understanding’ that sex without consent is rape.
Now, The Telegraph reports, three Court of Appeal judges will hear the four cases which could then have previous rulings overturned and lead to an overhaul of the family court proceedings.
The Thanet mum’s case is one of those being represented.
A Thanet family’s legal fight
In February of this year we spoke to the grandmother of the family who said she was terrified her toddler granddaughter would be snatched by the child’s father or be put at risk of harm after being ‘failed’ by the family courts system.
The woman, who cannot be identified for legal reasons, says a judgement granting access rights for the girl’s father despite evidence of domestic abuse during the relationship with her daughter means the family fears the child, who is three, will be exposed to harm.
Domestic and sexual abuse in the relationship was not appropriately considered by the court, says the grandmother.
She told The Isle of Thanet News “When we went to court the judge just wasn’t interested in hearing about the domestic violence even though we had reported it to the police, GP, social workers and Oasis Domestic Abuse Service.
“When the police are called for domestic abuse they have a questionnaire with 22 questions and one is whether the other partner has ever forced themselves sexually on them. My daughter said that happened 10 or 11 times and police have to record that as rape. She said she didn’t know it was rape.
“In the family court hearing the judge told her he would take her baby away if he found she had made up the rape claim.
“The father has been given unsupervised access. The right of the non resident parent to have contact with the child is being put before the rights of the child to have a family life free from sexual harm and experiencing abuse.”
The child’s great-grandparents have spent tens of thousands of pounds on legal fees in the custody case.
Family courts are bound to consider under Practice Direction 12J whether a child is at risk due to domestic violence in a relationship and apply this knowledge when making orders for child access.
The grandmother says this practice direction is being ignored in the courts and says allegations of rape within a relationship are being brushed aside.
The appeal court hearing on January 19-21 could change this.
The judges will consider appeals over rulings made by three family court judges, all centre on custody and access disputes.
The Judges are expected to make a decision on whether to uphold or reject the appeals but also issue guidance to family court judges on dealing with allegations of rape, abuse and coercive control.
The findings could lead to a number of prior cases being overturned.
The last time issues relating to marital or partnership rape were examined as part of the family courts was some two decades ago.
Justice Russell has previously called for training for judges dealing with rape and sexual assault allegations in the Family Court.
The Thanet grandmother said: “Perpetrators are constantly taking victims through the judicial system, the amount of family members that end up with PTSD is unbelievable.
“In the last two years we have been through the family court three times. If people realised what went on in the family courts they would be shocked to the core. It is the vilest process to go through.
“This review will see the biggest change regarding domestic violence. It is going to change the law.”
The government also launched a review in November to consider how the current approach to decisions on parental access made in the family courts is impacting child safety.
The government says it follows a package of reforms earlier in the year to overhaul how family courts deal with domestic abuse cases – providing extra protections in courtrooms for victims, stronger powers to block abusers repeatedly dragging victims back to court and a new investigative court process to reduce conflict.
The recent review into harm in the family courts system, which published results in June, found this presumption ‘detracted from the focus on a child’s welfare and safety – causing harm to children in some cases’. It recommended further analysis of how the courts were applying this presumption of parental involvement so that the impact could be properly assessed before determining whether a change in legislation or other reforms are needed
The review is expected to report back next year
Freephone 24 hour National Domestic Abuse Helpline: 0808 2000 247 (run by Refuge)
Victim Supportline free on 0333 272 1297