A woman who said a judge's “outdated views” on sexual assault led to her losing a court battle with a former partner has won the right to an appeal.
The woman said that she had been a victim of domestic violence and that the man had raped her during a fight for custody over their four-year-old son.
Judge Tolson, who was asked to make findings of fact relating to six domestic violence allegations, ruled against her after a private hearing at the Central Family Court in London in August.
The woman claimed Judge Tolson had concluded that because she had “taken no physical steps” to stop the man from raping her “this did not constitute rape”.
On Thursday Ms Justice Russell, who analysed the request for appeal at a public hearing in the Family Division of the High Court in London, indicated that a fresh fact-finding hearing would be overseen by a different judge.
Ms Justice Russell indicated that she would publish the reasoning behind her decision to allow the appeal in the near future.
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The court heard how the couple had separated more than three years ago and the boy remained with his mother.
Family court litigation began after the man asked to be allowed to spend time with his son - but the woman objected and said the man had been controlling and had sexually assaulted her.
Judge Tolson said the woman’s allegations were “untrue” and that she was “not raped” and not “subject to a controlling relationship”.
Barrister Catherine Piskolti, who led the woman’s legal team, told Justice Russell: “The learned judge was wrong in impermissibly allowing his outdated views on sexual assault, and likely victim responses to this, to influence his findings and conclusions.
“The learned judge found that because the appellant had taken no physical steps to stop (him) from raping her this did not constitute rape, or non-consensual sexual intercourse, or that because she did not take physical steps to stop him her evidence is not credible and therefore it did not happen.”
She added: “Either way, the learned judge’s approach was wrong.”