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.
The first part of this article by paralegal and former Independent Domestic Violence Advisor Lea Levine, considered how the law has adapted to reflect a deepened understanding of coercive control. The full article was originally published in the February 2023 edition of Family Law Journal. This second part will consider the threshold for allegations of coercive and controlling behaviour, and the practicalities of Scott Schedules and whether coercive control can be accurately reflected within this format of evidence.
The threshold
It is crucial to consider whether the threshold for allegations of coercive and controlling behaviour is established before a fact-finding hearing is ordered. As Lady King and Lord Holroyde rightly opined in H-N and Others, “not all directive, assertive, stubborn or selfish behaviour” will constitute abuse. Furthermore, establishing coercive control must be done by highlighting “the intention of the perpetrator of the alleged abuse” and “the harmful impact caused by the behaviour”.
This requires legal professionals to have an intricate understanding of behaviour giving rise to coercive control. If the behaviour does not make a person subordinate or is not used to harm, punish or frighten the victim, it would be disproportionate and unnecessary to order a fact-finding hearing. To quote Lord Justice Peter Jackson in Re L (Relocation: Second Appeal) [2017] EWCA Civ 2121, “few relationships lack instances of bad behaviour on the part of one or both parties”. This represents the pragmatic and considered view maintained by judges. Therefore, it is advisable to ensure one analyses whether the behaviour crosses the threshold and the relevance if it does so.
As the court said in SD v AFH and another [2019] EWHC 1513 (Fam), “the line between behaviour which can properly be characterised as coercive or controlling and behaviour which does not cross that threshold is not a bright line”. It is vital to pinpoint when and why the alleged behaviour fell outside what is acceptable within a relationship. This is no mean feat when faced with allegations of coercive control, the cumulative effect of which surpasses the threshold. One must consider allegations of historical abuse to emphasise the pattern of behaviour rather than isolated incidents. Without this crucial context, judges would be unclear why the victim felt such fear and subordination towards the alleged perpetrator.
To discern such context during a client conference, one could explore why the client was so dependent on their abuser and unable to leave. The client may present a narrative of a whirlwind romance in which the perpetrator established trust and co-dependency. This would quickly lead to isolation through alienating the victim from their family and friends, financial control, monitoring and surveillance, emotional manipulation and, in the extreme, physical entrapment. Adrian Barnett-Thoung-Holland comments how it is a culmination of incidents which amplifies the potency of abuse. The latter incident simply cannot be understood fully without the former.
Recent case law exemplifies a willingness from the judiciary to look at the wider context of abuse. In Re B-B, Mr Justice Cobb, using the benchmark created in the Re H-N case, rightly attached weight to the power imbalance described by the victim. Through considering the age difference of the parties and the exploitation of the victim’s naivety through manipulation and gaslighting, Mr Justice Cobb found the allegations of coercive control true. It is reassuring that the judiciary is taking a hard line on counter-allegations of abuse.
Indeed, Re B-B effectively cut through the respondent’s argument that the appellant was not abused based on her desire for the relationship to continue. On the contrary, the judge recognised that an abusive relationship often results in unhealthy co-dependency. A key tactic of an abuser is to destroy their victim’s self-esteem to a point where they feel unable to leave the relationship. Mr Justice Cobb further accepted that the victim’s confusion over the sequence of events was not due to a lack of honesty but the intense psychological turmoil associated with those memories. By focusing on the effect of an abuser’s behaviour, practitioners can evaluate whether the threshold is met and develop compelling lines of enquiry to progress the case.
Scott Schedules
Family law practitioners will be familiar with the utility of Scott Schedules and the organisational benefits they have when structuring allegations into isolated incidents. However, this section will explore how Scott Schedules have become a potential barrier to fairness and good process in cases where allegations of coercive and controlling behaviour are made.
The case of F v M [2021] compellingly noted that the insidious nature of coercive control could not “easily be captured by the more formulaic discipline of a Scott Schedule”. Equally, the Harm Panel confirmed that the schedules “reduce a long and complicated history of abuse into neat and discrete descriptions” resulting in the minimisation of abuse. Despite determining their counter-productivity, Mr Justice Hayden clarified that prescriptive guidance on Scott Schedules would be inappropriate. As a result, the profession is left with no clear alternative for formalising evidence, and Scott Schedules remain a matter for individual judges.
The court in Re H-N identified the need to develop a different way of summarising and organising issues to be tested at a fact-finding hearing for two reasons:
- Scott Schedules fail to focus on a pattern of coercive and controlling behaviour, and
- They limit the allegations to be tried, producing a false portrayal of the family dynamic and the extent of the alleged perpetrator’s behaviour.
However, no guidance as to how to place such allegations in a practical form was advanced. This has formed the basis of much criticism from academics and practitioners alike. As such, this section provides some suggestions for an alternative. The court in H-N speculated the use of formal pleadings by way of a Particulars of Claim (POC) used in civil proceedings, a “threshold” type document, and a narrative statement in a “prescribed form”. These vague considerations are not without merit but require significant analysis. Those who practice public family law will be familiar with the stringent requirements of a threshold document, helpfully characterised in Re J (A Child) [2015]. The document should be drafted in a short form, clearly demonstrating:
- The nature of the case,
- The essential factual basis of the case,
- What the evidence is based upon, and
- What is being asked of the court and why.
There is certainly potential for a threshold statement to work instead of a Scott Schedule. However, it was emphasised in Re A (a Child) [2015] EWFC 11 that only facts capable of proof must be included in the threshold statement. This high standard is understandable in cases where intervention from a local authority is threatened. Nevertheless, Tim Earl’s attitude that general allegations would constitute “bad practice” may cause difficulties if maintained in cases of coercive control.
Coercive control is notoriously difficult to prove and prosecute due to the lack of tangible evidence. A threshold document may be an inappropriate format if such clear evidence is required. It is submitted that a clear narrative from a witness is preferable, allowing the story to be told without constraining the information to facts alone. The task of capturing the thoughts and feelings of the client in a concise statement capable of summarising the events to a judge requires considerable skill. To quote John Jackson and Scott Halliday, this is particularly true when balancing the overriding objective, the client’s best interests, the welfare of the child and proportionality. To give structure to such a narrative form, it is suggested that a modified version of a POC may be an appropriate format within which to formally plead coercive control. The essence of a POC is to tell the story from the claimant’s perspective.
Furthermore, professionals could approach the allegations of abuse akin to a formal pleading of a personal injury case. Firstly, the POC would capture the pattern of abuse by using descriptive paragraphs. Secondly, the POC would demonstrate the impact of the abuse by particularising the psychological damage sustained by the victim and child.
Without rule changes by policymakers, these suggestions remain exactly that, suggestions. Furthermore, legal professionals are bound by the parameters set by the FPR. Where a judge insists a Scott Schedule is used and limits the number of allegations contained within it, practitioners have no choice but to comply. However, Jackson recommends practitioners respond by using main headings to frame the allegations and further demonstrate the controlling pattern of behaviour by utilising subheadings. This ensures the judge’s directions are complied with but affords more context and explanation to the allegations. As a result, the pattern of coercive and controlling behaviour is still emphasised despite the format. The recent judgments of AA v BB and Re B-B have afforded further scope to professionals contending with the restrictive nature of a Scott Schedule. In the former, the court ruled that if evidence is admissible and relevant towards the allegations of a pattern of behaviour, it should not be excluded merely because the Scott Schedule has limited allegations.
Additionally, Mrs Justice Judd approached the allegations of abuse more holistically by “clustering” the issues into varying forms of abuse. These cases represent excellent and progressive precedents, which should enable practitioners to fully explore patterns of coercive and controlling behaviour in its entirety.
To conclude, the incompatibility of Scott Schedules is uncontentious, with the judiciary, expert panels and practitioners alive to the suggestion of alternatives. Practitioners must continue to protest their use to ensure the severity of coercive and controlling behaviour is effectively distinguished.
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