Over 130 family lawyers and women’s rights groups have called for Judge Tolson's continuing cases to be reviewed, following Justice Russell’s condemnation of the family court judge’s treatment of an allegation of sexual assault in a child protection fact-finding trial last month.
The open letter also called for mandatory training on the "meaning of consent" for family court judges. This comes after the Honourable Ms Justice Russell DBE condemned Judge Tolson's judgment in JH v MF (https://www.judiciary.uk/wp-content/uploads/2020/01/jh-v-mf-judgment.pdf) as "so flawed as to lead to the conclusion that it is unsafe and wrong."
According to Justice Russell in JH v MF, Judge Tolson "had largely relied on his view that the Appellant had not vigorously physically fought off the Respondent" when he ruled that a rape had not taken place.
She added: "The judge failed to explain the reasons for his findings; as to why, if it was evident to the judge that the Appellant had become averse to sexual intercourse continuing it was not evident to the Respondent."
Justice Russell concluded that the "judgment was so flawed as to require a retrial...by a High Court Judge or Deputy High Court Judge at the Royal Courts of Justice."
She also recommended that, like judges who sit in the criminal courts, family court judges should be required to undergo training on the appropriate approach to take when considering allegations of serious sexual assault where issues of consent are raised.
In a separate letter (https://rightsofwomen.org.uk/wp-content/uploads/2020/01/Letter-re-JH-v-MF-special-measures.pdf) addressed to Victoria Atkins MP, Parliamentary Under Secretary of State (Minister for Women) and Nicole Jacobs, Domestic Abuse Commissioner, Rights of Women called on the government to amend the Domestic Abuse Bill, asking to “extend the automatic provision of special measures to victims of domestic and sexual violence, stalking and harassment in the Family and Civil Courts”.
It added: “The women we speak to on our family law advice line often tell us about the lack of special measures. This includes situations like JH’s where an application for special measures was made but were not provided, without any explanation.
“While this situation continues, women are not only being denied their Article 6 right to a fair hearing but the basic principles of equality before the law and access to justice are being eroded. We do not believe that waiting for the outcome of any review is an adequate response to this clear injustice.”