1 Garden Court

Nine members of 1GC Family Law instructed in linked appeals in the Court of Appeal in cases involving allegations of Domestic Abuse

The Court of Appeal is this week hearing four linked appeals in cases involving allegations of domestic abuse.

The four cases are appeals from Circuit Judges who did not find allegations of domestic abuse proved. The mothers who made the allegations appealed to the High Court and the appeals were leapfrogged to the Court of Appeal with a view to general guidance being given by the appeal court in relation to cases which engage PD12J.

It is of note that the Court of Appeal has not looked at the issues which arise in cases involving allegations of domestic abuse since Re: LVMH [2001] 2 WLR 339. That case was decided  before PD12J in its original form came into being and before the coming into force (on 3 March 2015) of the Serious Crimes Act 2015, which, by s.76, created a new offence of controlling or coercive behaviour in intimate or familial relationships.

In addition to hearing each of the substantive appeals on its merits, the Court of Appeal will hear argument on five issues of principle which it has set out, as to how such cases should be dealt with. The issues of principle set out by the court are as follows:-

1. How and when fact-finding hearings should take place.

2. The treatment in the family courts of allegations of marital or partnership rape and, in particular, whether the family court is bound to analyse factual issues within the context of the criminal law.

3. The treatment of coercive and controlling behaviour in the family courts.

4. How Practice Direction 12J is to be applied, together with Practice Direction 3AA.

5. Following a fact-finding hearing, the proper approach in private law proceedings where:-

(a) there have been findings of domestic abuse

(b) allegations of domestic abuse have been dismissed.

The cases have attracted considerable attention, with several interest groups being given permission to intervene and with a great deal of media interest. The Court of Appeal hearing, which is over three days, is being held in public and live streamed.

9 1GC Family Law Silks and Juniors are involved in the appeals, as follows:-

Janet Bazley QC, with Jessica Lee and Costanza Bertoni, instructed by Clara Barry Born at Bindmans, act for the Respondent in the lead appeal, Re H-N.

Denise Gilling (who is a new Silk this year) with Arlene Small (of Clerks Room) and Melissa Elsworth, instructed by Zoe Fleetwood of Mills & Reeve, act for the Respondent in the second appeal, Re H.

Sarah Morgan QC, with Tom Wilson and Lucy Maxwell, instructed by Jenna Lucas and Scott Halliday of Irwin Mitchell act for one of the Interveners (with permission to make oral submissions).

Deirdre Fottrell QC, with Lorraine Cavanagh QC (of St. John’s Buildings Chambers), instructed by ITN Solicitors, act on behalf of the ALC, another intervener (with permission to file a Skeleton Argument).


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