F v M [2021] EWFC 4
The recent case of F v M [2021] EWFC 4 examined allegations of coercive and controlling behaviour and provided guidance for dealing with this issue in the Family Courts. Mr Justice Hayden sought to “highlight the insidious reach of this facet of domestic abuse”.
In this case, the Father applied for contact with his children. This was a fact-finding hearing. The Mother sought to bring into evidence the Father’s behaviour towards his new wife, Ms J, to support the pattern of his behaviour as similar fact evidence. Both women were isolated from their families and friends and pressured into leaving their education and careers within weeks of meeting the Father. Both women married the Father in secret, had their social media accounts closed, and their assets, such as a car and money, taken from them by the Father.
Hayden J wrote:
“In the Family Court, that expression [of coercive and controlling behaviour] is given no legal definition. In my judgement, it requires none. The term is unambiguous and needs no embellishment. Understanding the scope and ambit of the behaviour however, requires a recognition that ‘coercion’ will usually involve a pattern of acts encompassing, for example, assault, intimidation, humiliation and threats. ‘Controlling behaviour’ really involves a range of acts designed to render an individual subordinate and to 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.”
The judge stated that definitions from Practice Direction 12J of the Family Procedure Rules provide useful guidance when broken down as follows (please note that Hayden J has expanded upon the definitions when breaking them down and so there are differences between the below and the definitions in the said Practice Direction):
“Coercive Behaviour:
i. a pattern of acts;
ii. such acts will be characterised by assault, threats, humiliation and intimidation but are not confined to this and may appear in other guises;
iii. the objective of these acts is to harm, punish or frighten the victim.
Controlling Behaviour:
i. a pattern of acts;
ii. designed to make a person subordinate and/or dependent;
iii. achieved by isolating them from support, exploiting their resources and capacities for personal gain, depriving them of their means of independence, resistance and escape and regulating their everyday activities.”
More usually the court is concerned with a pattern of behaviour rather than one significant incident and so practitioners should look at a longer period and many examples of behaviour when considering this. In the judgment, Hayden J stated:
“Key to assessing abuse in the context of coercive control is recognising that the significance of individual acts may only be understood properly within the context of wider behaviour. I emphasise it is the behaviour and not simply the repetition of individual acts which reveals the real objectives of the perpetrator and thus the true nature of the abuse.”
The judge referenced guidance from the Home Office regarding controlling and coercive behaviour which he found particularly apt in the context of vulnerable adults and “strikingly relevant” in this case:
• “Isolating a person from their friends and family
• Depriving them of their basic needs
• Monitoring their time
• Monitoring a person via online communication tools or using spyware
• Taking control over aspects of their everyday life, such as where they can go, who they can see, what to wear and when they can sleep
• Depriving them access to support services, such as specialist support or medical service
• Repeatedly putting them down such as telling them they are worthless
• Enforcing rules and activity which humiliate, degrade or dehumanise the victim
• Forcing the victim to take part in criminal activity such as shoplifting, neglect or abuse of children to encourage self-blame and prevent disclosure to authorities
• Financial abuse including control of finances, such as only allowing a person a punitive allowance
• Control ability to go to school or place of study
• Taking wages, benefits or allowances
• Threats to hurt or kill
• Threats to harm a child
• Threats to reveal or publish private information (e.g. threatening to ‘out’ someone)
• Threats to hurt or physically harming a family pet
• Assault
• Criminal damage (such as destruction of household goods)
• Preventing a person from having access to transport or from working
• Preventing a person from being able to attend school, college or University
• Family ‘dishonour’
• Reputational damage
• Disclosure of sexual orientation
• Disclosure of HIV status or other medical condition without consent
• Limiting access to family, friends and finances”
Hayden J also observed that this list was not exhaustive as it does not include controlling the intake of food and nutrition, for example, which was a key element of the pattern of abuse in this case. Hayden J writes that the Mother “told me that F would frequently order vast quantities of food which he would not share and would tease both M and Y about. In the context of the more striking and serious abuse this detail was eclipsed but as a facet of the wider picture it now strikes me as yet another feature of control and on the most basic of levels.”
This demonstrates that behaviour that might on the face of it seem quite insignificant on the scale of abusive behaviour could form part of a pattern of evidence of a wider and much more significant background of abuse and should therefore not be discounted but examined in the context of the dynamic between the parties.
Hayden J wrote:
“There will frequently be clues, hints, indicators and triggers in what people report which might stimulate wider forensic curiosity and precipitate investigations of greater subtlety and nuance. …Much of the evidence that I have set out indicates how the families, friends, work colleagues and neighbours knew what was happening to these two women and from an early stage. Broader professional education on the scope and ambit of coercive and controlling behaviour is likely, in my view, to generate greater alertness to abuse of this kind which too frequently lies buried or only superficially investigated.”
Scott Schedules
Hayden J provided a post script on the use of Scott Schedules in cases where controlling and coercive behaviour is alleged. A Scott Schedule is typically used in fact finding hearings and is a table listing allegations and supporting evidence. Hayden J did not consider it appropriate to give prescriptive guidance, but said in instances of this type of abuse, whilst he could see their advantage, he could also see that this “particularly insidious type of abuse, may not easily be captured by the more formulaic discipline of a Scott Schedule”.
In these situations, the judge again emphasised that it is a pattern of behaviour that is relevant. Survivors of this abuse might by inured to particular instances of the abuse and “an intense focus on particular and specified incidents may be a counterproductive exercise. It carries the risk of obscuring the serious nature of harm perpetrated in a pattern of behaviour.” Due to their “severe limitations”, Hayden J considers that in cases of controlling and coercive behaviour, Scott Schedules are rendered “both ineffective and frequently unsuitable”. The judge questioned whether they are even a useful tool in factual disputes in Family proceedings more generally. He did not go further, however, as he recognised that there will be some cases where they have “real forensic utility” but it will be a matter for the judge and advocates to decide on the appropriateness of a Scott Schedule in each individual case considered on its own facts.
Impact on Criminal Proceedings
Coercive or controlling behaviour is a crime under section 76 of the Serious Crime Act 2015. The Home Office guidance describes controlling or coercive behaviour as not a single incident, but “a purposeful pattern of behaviour which takes place over time in order for one individual to exert power, control or coercion over another”.
It is important to remember that although family proceedings take place in the Civil Courts, allegations made in family proceedings may not stay there. Whilst there are some key differences between the Family Court and Criminal Courts and cases may run separately in each court, there may be instances where findings in the Family Court can be presented as evidence in the Criminal Court.
Under Practice Direction 12G of the Family Procedure Rules, a party may provide the text or summary of the whole or part of a judgment given in children proceedings to the police for the purpose of a criminal investigation. Equally, under paragraph 22.20 of the Family Procedure Rules, the court can give permission to use witness statements given in evidence in matrimonial and civil partnership proceedings or financial remedy proceedings for the purpose of other proceedings.
If someone has been accused of coercive or controlling behaviour, that person and his or her legal advisors should therefore be conscious when giving evidence in the family proceedings that it could then potentially form part of the landscape in subsequent criminal proceedings.
Domestic abuse is a pervasive issue that can be found across all walks of life. In the year ending March 2021, the police recorded 845,734 domestic abuse-related crimes in England and Wales. Family practitioners should be alive to the signs of domestic abuse in all its forms, including those such as controlling or coercive behaviour, which may require greater investigation and examination in a wider context. Whilst each case is specific to its own circumstances, practitioners should also be aware that allegations in the family courts can have consequences beyond the family proceedings.
If you require any family advice please do not hesitate to contact Evelyn Collins of the Family Department.
