Those working within the family court system will be no strangers to allegations of coercive and controlling behaviour. The criminalisation of coercive control by s76 of the Serious Crime Act 2015 has elevated the severity of emotional abuse to parallel physical abuse.
This article was written by paralegal and former Independent Domestic Violence Advisor Lea Levine, and originally published in full in the February 2023 edition of Family Law Journal. In this first part, the article considers how the law has adapted to reflect a deepened understanding of coercive control. Part two considers the threshold for allegations of coercive and controlling behaviour, the practicalities of Scott Schedules, and whether coercive control can be accurately reflected within this format of evidence.
The Family Procedural Rules
The progressive outlook from the legal system is replicated in the Family Procedural Rules 2010, Practice Direction 12J (PD12J), which defines coercive control as follows:
“‘coercive behaviour’ means an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten the victim; and
‘controlling behaviour’ means an act or pattern 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.
Crucially, these definitions describe a pattern of behaviour rather than isolated incidents, a culmination of which results in the victim being coerced and controlled. This behaviour is far more nuanced and difficult to establish than violent acts. Nevertheless, SafeLives shows that 82% of domestic abuse victims experienced “jealous and controlling behaviours” from the perpetrator.
Unsurprisingly, a report conducted by Women’s Aid found that the estimates for allegations of domestic abuse in private law children cases are high, ranging from 49% to 62%. As awareness around domestic abuse has improved, so has the legal profession’s response. However, Mr Justice Hayden made clear in his judgment in F v M [2021] EWFC 4 (Fam) that coercive control “requires greater awareness and more focused training for the relevant professionals”.
Procedure for fact-finding hearings
The recent case of Re M (A Child) (Fact-Finding: Appeal) [2022] demonstrates the judiciary’s progressive attitude when looking at evidence of domestic abuse. Specifically, Ms Justice Judd compellingly explores societal and cultural factors that place individuals at greater risk of abuse and emphasises the importance of affording victims vulnerable witness status. At its core, domestic abuse is the product of power and control. This case highlights how coercive control can disproportionately impact minoritised individuals and brings the importance of following procedural rules in allegations of coercive control into sharp focus. The failure to consider the victim’s vulnerability and consequently failing to afford her special measures was so serious that the court’s decision could not stand. It is therefore crucial legal professionals comply with Practice Direction 3AA to ensure their client can give their best evidence despite the traumatic circumstances.
Practice Direction 12J
PD 12J in its current form came into force in 2017, following a revision made by the President of the Family Division at the time, Sir James Munby. This revision saw a departure from the old terminology of “domestic violence” in favour of “domestic abuse”. This shift in language represents a nuanced, albeit crucial move towards a more holistic understanding of the nature of domestic abuse.
PD 12J’s purpose is to provide a framework within which the family courts can test allegations of domestic abuse and its impact on the parties and children. As Bryden and Adams compellingly comment, the express recognition of coercive and controlling behaviour within PD 12J is a welcome advancement. Indeed, the practice direction necessitates a greater understanding and responsiveness from the judiciary and legal professionals in such cases. The breadth and scope of coercive control often makes it difficult to spot, with victims themselves unclear about the extent of the abuse they have suffered. This places a burden on legal professionals and other agencies to spot coercive control to ensure the early identification of factual and welfare issues.
Pursuant to PD 12J 5, domestic abuse must be raised as an issue either by the parties or by Cafcass at the First Hearing Dispute Resolution Appointment (FHDRA). At this stage, if there is cause to suspect that a child is at risk of harm, the court must consider directions for evidence and a fact-finding hearing. Additionally, the court must consider the necessity of an interim order to mitigate any possible risk of harm (PD 12J, 25-27).
The importance of PD 12J cannot be overstated, and case law has demonstrated that the practice direction must remain at the forefront of the judicial mind throughout proceedings. In MS v MN [2017], Mr Justice Moor overturned a child arrangement order where the trial judge failed to direct a risk assessment under section 16A Children Act 1989, contrary to PD 12J. At first instance, immediate direct contact between the alleged perpetrator and child was ordered. This ruling demonstrated a flagrant disregard for the security and stability of the mother and child, contrary to the spirit of PD 12J. Consequently, the appeal reaffirmed that PD 12J is the central mechanism for ensuring relevant factual and welfare issues are tried expediently and fairly.
Dr Charlotte Proudman suggests that the guidance provided by the judiciary in this area is lacking. Indeed, in the long-anticipated judgment of H-N And Others (Children) (Domestic Abuse: Finding of Fact Hearings) [2021] EWCA Civ 448, Mr Justice Hayden stated that none of their decisions established “new law” nor any legally binding precedent. Utilising interveners such as Women’s Aid, the court considered the approach to take in allegations of coercive control, Scott Schedules and fact-finding hearings. However, in practice, the case was limited to confirming that PD 12J is fit for purpose, provided it is properly implemented.
What can be gleaned from the H-N judgment is the importance of early identification of issues and whether the allegations of domestic abuse necessitate a fact-finding hearing. Counsel and instructing solicitors should flag any welfare issues early to ensure against the resurrection of allegations made late in the process to bolster the denial of contact. Barrister Katherine Kelsey proposes this could be done by taking a detailed proof of evidence and may require significant liaising with Cafcass to understand their views and safeguarding concerns.
A fact-finding hearing will only be ordered where there is a real purpose of having such a hearing. The court should not become a belligerent and bitter battleground used to air grievances. This was made abundantly clear in the recent case of re B-B (Domestic Abuse: Fact-Finding) [2022] 2 FLR 725 where Mr Justice Cobb stated that in private law cases, the court needs to be vigilant to the possibility one or other parent may be seeking to gain an advantage in the battle against the other. Lawyers should therefore heed PD 12J paragraph 17(d), ensure there is a significant factual basis on which to proceed and directly link the nature and extent of allegations to the issue of contact (PD 12J 17(g)).
It is worth noting that domestic abuse is not in and of itself a bar to child contact (Re L (A child) (Contact: Domestic Violence) & Ors [2001]). Remorse from the offending parent and a willingness to change, accompanied by genuine effort to that effect, will usually tip the scale in favour of contact. Furthermore, legal professionals should be astute towards their client’s attitude and ensure this is represented to the judge under PD 12J.
Once the decision has been made to conduct a fact-finding hearing to determine an allegation of coercive control, the court does so under the ordinary civil law. Thus, “the burden of establishing truth is on the parent who makes the allegation” (H-N). This forms an immediate obstacle to victims, as it puts enormous pressure on vulnerable witnesses to give evidence and relive their traumatic experiences. Legal professionals should be receptive to their clients’ needs and ensure support is offered. This could be through signposting to local domestic abuse charities or implementing special measures for giving evidence in court. A practical point to consider when making representations about the necessity of a fact-finding hearing is the overt burden on the family court system and limited resources. Proudman states that approximately “40% of children cases in family courts involve allegations of domestic abuse”, amounting to 27,626 cases in 2019/2020. Further, H-N reaffirmed that “not every case requires a fact-finding hearing even where domestic abuse is alleged”. For example, evidence of a criminal conviction would satisfy that the abuse happened on the balance of probabilities, negating any need for a fact-finding hearing.
The second part of this article considers the threshold for allegations of coercive and controlling behaviour, the practicalities of Scott Schedules, and whether coercive control can be accurately reflected within this format of evidence.
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