A High Court judge was so appalled by a colleague's "fundamentally flawed and unjust" conduct that she has asked for all judges who hear cases involving allegations of serious sexual assault to receive training.
Ms Justice Russell announced her request as she overturned family judge HHJ Tolson's "unsafe and wrong" ruling.
Last year HHJ Tolson found against a young woman, 'D', in child custody proceedings brought by her partner, 'R'. The case turned on D's claims that R had raped and abused her.
R applied for the child arrangements order after D fled to a refuge with their child in 2018, following a five year relationship which began when she was 17 and he was 23. Over the course of their relationship D and others made multiple complaints to the police that R was aggressive and abusive towards her and that he raped her on two occasions, although the CPS did not pursue charges.
During the appeal, it was disclosed that R had convictions for theft, common assault, criminal damage, resisting arrest, and battery and criminal damage involving a former partner, and had been subject to numerous police call outs for alleged domestic abuse of two previous partners. His own mother, brother and aunt had also all complained to the police about his violent and abusive behaviour.
At the hearing, D was classified as a vulnerable witness and applied for privacy screens to assist her in giving evidence. But HHJ Tolson took "the inexplicable step", said Ms Justice Russell, of ordering D to give evidence in public from the row of seats where counsel sat.
Referring to the "feng shui" of the court room, HHJ Tolson then ordered that R should be able to give evidence from counsel's row as well because it "created some kind of balance". As a result, R was able to take advice from his McKenzie friend while he was being cross-examined, which was an advantage denied to D.
HHJ Tolson's decision breached procedure and caused D anxiety, but it also meant that he "actually did not hear significant parts" of D's testimony, said Ms Justice Russell. "To go on, as this judge did, to use it as one of the reasons he questioned her evidence is aberrant", she said.
HHJ Tolson's judgment was "flawed for a multiplicity of reasons", she said. At one point he mused that D appeared to be "of a highly anxious, it might be said, neurotic, disposition", without seeking any expert evidence to justify his assessment.
He also appeared unable to recognise evidence of abuse. He classed threatening texts sent by R such as, "If you don't shut up I will stick my cock up your ass", as "sexting", and dismissed an incident where R pinned D against a wall as no more than a sign "that the relationship had its difficulties".
He also concluded that any abuse had long since stopped, which Ms Justice Russel said was "wholly misconstrued", since "the most obvious reason there were no further incidents or complaints was that [D] had fled the family home", and R didn't know where she was.
Ms Justice Russell said HHJ Tolson cut short D's counsel's closing submissions and repeatedly interrupted her, creating a "real risk of the appearance of a partisan approach". The impression of bias was compounded when he subsequently ordered an investigation into D's ability to care for her child, even though no concerns were raised at trial and there was no evidence to support his direction.
But Ms Justice Russell appeared most astonished by HHJ Tolson's understanding of abuse and rape. To describe his view as "out-dated" was "euphemistic", she said. "It is clear that the judge's approach towards the issue of consent is manifestly at odds with current jurisprudence, concomitant sexual behaviour, and what is currently acceptable socio-sexual conduct".
HHJ Tolson had described how D's consent was "only removed during intercourse" when she told R to stop. R ignored her, but, said HHJ Tolson, "this is a mother who very often, and for all I know, always, found that she had difficulties in taking physical enjoyment from sex".
He said he was concerned that D "did nothing physically to stop the father", even though she was "not pinned down on this occasion, but could easily, physically, have made life harder for the father”.
"Following the event, as I have already said, the mother took no immediate action to report the matter to the police, or indeed to anyone else", he added.
HHJ Tolson complained that D did not fight back during the second alleged rape, either. "Here, my difficulty with the mother's account centres on the removal of her pyjama bottoms", he said.
"I do not see why the mother could not, should not, have made life difficult for the father in the circumstances in which she found herself by preventing the removal of the pyjama bottoms. There is no evidence of any kind that a struggle pursued."
Ms Justice Russell said, "This is a senior judge, a Designated Family Judge, a leadership judge in the Family Court, expressing a view that, in his judgment, it is not only permissible but also acceptable for penetration to continue after the complainant has said no, but also that a complainant must and should physically resist penetration, in order to establish a lack of consent".
Ordering a retrial, she said "I have discussed this with The President of the Family Division, and he is going to make a formal request to the Judicial College for those judges who may hear cases involving allegations of serious sexual assault in family proceedings to be given training based on that which is already provided to criminal judges".