An understanding of Coercive and Controlling behaviour in private children cases and the recent case of F v M (2021) 4

By Shameela Ahmed

In September 2012, the Government published guidance that may assist us as lawyers in both family and criminal practice to better understand the nature and features of controlling or coercive behaviour.

 

DOMESTIC VIOLENCE AND ABUSE ARE DEFINED AS:

"Any incident or pattern of incidents of controlling, coercive or threatening behaviour, violence or abuse between those aged 16 or over who are or have been intimate partners or family members, regardless of gender or sexuality. This can encompass, but is not limited to, the following types of abuse: psychological, physical, sexual, financial and emotional."

THE FOLLOWING EXPLANATORY TEXT SUPPORTS THE DEFINITION:

"This definition, which is not a legal definition, includes so-called 'honour' based violence, female genital mutilation (FGM) and forced marriage, and is clear that victims are not confined to one gender or ethnic group."

THE GOVERNMENT DEFINITION ALSO OUTLINES THE FOLLOWING:

  • Coercive behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim
  • Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape and regulating their everyday behaviour

Section 76 of the Serious Crime Act 2015 - Controlling or Coercive Behaviour in an Intimate or Family Relationship

Section 76 of the Serious Crime Act 2015 created a new offence of controlling or coercive behaviour in an intimate or family relationship. Before the introduction of this offence, case law indicated the difficulty in proving a pattern of behaviour amounting to harassment within an intimate relationship.

If relevant, allegations of domestic abuse in children cases are usually raised from the outset by either the Mother or the Father in private law proceedings. Further allegations may be raised at a later stage when dealing with safeguarding of the child, with recommendations by Cafcass (a specialised individual appointed by the Court to promote the welfare of children and families involved in proceedings) as to whether there should be a hearing to prove these allegations (known as a fact-finding hearing) before final resolution of the case.

Where the allegations are of violence per se, these are relatively easy to set out (i.e. a table identifying the allegations and the evidence relied on in support) and determine by the Court, as they will usually be confined to a particular incident alleged to have occurred on a particular day, time and place, with at least the parties giving evidence. Where the allegations are of a coercive and controlling nature, however, they are more challenging to capture and hence prove to the Court.

WHAT ABOUT F V M (2021) 4?

In a recent case, however, of F v M [2021] 4, the Judge (Mr Justice Hayden) had to wrestle with how to deal with allegations of controlling and coercive behaviours at the fact-finding stage of private law proceedings.

The interesting element of this case is that Mr Justice Hayden was robust, making extensive findings of coercive and controlling behaviour when he acknowledged the elusive and even amorphous nature of this conduct.

The starting point for family lawyers, however, is the guidance provided by Practice Direction 12J-Child Arrangements and Contact Order: Domestic Violence and Harm, which states that allegations of controlling behaviour or coercive behaviour must include "an act or pattern of acts" by the perpetrator, which leads to domestic abuse in the ways set out in those definitions. Mr Justice Hayden had this criticism of those definitions, however:

"The wording of Practice Direction 12J is potentially misleading in so far as it appears to contemplate establishing behaviour by reference to an act or pattern of acts. The key to assessing abuse in the context of coercive behaviour is recognising that the significance of individual acts may only be properly understood within the context of the wider behaviour. I emphasise it is the behaviour and not simply the repetition of the individual acts which reveals the real objectives of the perpetrator, and this is the true nature of the abuse."

Earlier in his judgment, he said this:

"The term [controlling and coercive behaviour] is unambiguous and needs no embellishment. However, understanding the scope and ambit of the behaviour requires a recognition that coercion will usually involve a pattern of acts encompassing, for example, assault, intimidation, and threats. Controlling behaviour involves a range of acts designed to render an individual subordinate and corrode their sense of personal autonomy. Key to both behaviours is an appreciation of a 'pattern' or 'a series of acts', the impact of which must be assessed cumulatively and rarely in isolation."

Reference was also made to Section 76 of the Serious Crime Act 2015 for further guidance on what constitutes controlling and coercive behaviour.

Section 76 is headed, "Controlling or Coercive Behaviour in an intimate or family relationship" and sets out that a person commits an offence if he repeatedly or continuously engages in behaviour that is controlling or coercive towards another person, which has a severe effect on that person and he knows or ought to know that it will have such an effect on that person.

 

'SERIOUS EFFECT' IS DEFINED AS BEHAVIOUR THAT CAUSES:

  1. fear on at least two occasions that violence will be used against that person, or
  2. serious alarm or distress, which has a substantial adverse effect on that person's day to day activities.

For a non-exhaustive list of controlling or coercive behaviour, there is statutory guidance framework in 2015 entitled, "Controlling and Coercive Behaviour in an Intimate Relationship."

 

CONCLUSION

It is clear that this is a complex area of law that requires careful handling after all, Mr Justice Hayden referred to such behaviour as "a particular insidious type of abuse" that is difficult to capture by the more formulaic discipline that the Courts are used to seeing.

My view is, where there are allegations of coercive and controlling behaviour they should be pleaded in a general way, highlighting examples of the behaviour alleged and setting further examples in the supporting statement. It may be necessary then for the Court to limit the examples relied on, preferably at the case management stage of proceedings or at the beginning of the fact-finding hearing itself.

Shameela Ahmed is a Partner in our Family Law Department, specialising in all aspects of family law, she has a wealth of experience in dealing with multi-value, complex financial claims and private disputes over children. Contact Shameela at Shameela@fletcherday.co.uk.

 

19 March, 2021
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